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Natural Resource Management and Policy
Ariel Dinar and David Zilberman, Series Editors

Braving the
Currents

Evaluating Environmental
Conflict Resolution in the
River Basins of the
American West

Tamra Pearson d’Estree
Bonnie G. Colby

Springer Science+Business Medis , LLC

BRAVING THE CURRENTS

NATURAL RESOURCE MANAGEMENT AND POLICY

Editors:

Ariel Dinar

Rural Development Department
The World Bank
1818 H Street, NW
Washington. DC 20433

David Zilberman

Dept, of Agricultural and
Resource Economics
Univ. of California, Berkeley
Berkeley, CA 94720

EDITORIAL STATEMENT

There is a growing awareness to the role that natural resources such as water, land, forests and
environmental amenities play in our lives. There are many competing uses for natural resources,
and society is challenged to manage them for improving social well being. Furthermore, there may
be dire consequences to natural resources mismanagement. Renewable resources such as water,
land and the environment are linked, and decisions made with regard to one may affect the others.
Policy and management of natural resources now require interdisciplinary approach including
natural and social sciences to correctly address our society preferences.

This series provides a collection of works containing most recent findings on economics,
management and policy of renewable biological resources such as water, land, crop protection,
sustainable agriculture, technology, and environmental health. It incorporates modern thinking and
techniques of economics and management. Books in this series will incoiporate knowledge and
models of natural phenomena with economics and managerial decision frameworks to assess
alternative options for managing natural resources and environment.

In an era where water quantity and quality problems lead to an increased number of domestic and
international conflicts, empirical experiences are quite valuable. Readers of Braving the Currents
would benefit from reading this book because it provides, in addition to having a sound theoretical
framework, a set of cases that altogether indicate how conflicts emerged, how tensions rose, how
mediators were brought in and how the mediators designed and implemented processes that
brought the conflict to some sort of resolution. Braving the Currents is likely to be very influential
among those lawyers, mediators, academics and policy makers concerned with the resolution of
public policy disputes generally and environmental conflicts in particular.

The Series Editors

Recently Published Books in the Series

Moss, Charles B.. Rausser, Gordon C., Schmitz, Andrew, Taylor, Timothy G., and Zilberman,
David

Agricultural Globalization, Trade, and the Environment
Haddadin, Munther J.

Diplomacy on the Jordan: International Conflict and Negotiated Resolution
Renzetti, Steven

The Economics of Water Demands
Just, Richard E. and Pope, Rulon D.

A Comprehensive Assessment of the Role of Risk in U.S. Agriculture
Dinar, Ariel and Zilberman, David

Economics of Water Resources: The Contributions of Dan Yaron
Unver.I.H. Olcay, Gupta, Rajiv K. IAS, and Kibaroglu, Ayjegiil
Water Development and Poverty Reduction

BRAVING THE CURRENTS

Evaluating Environmental Conflict Resolution

in the River Basins of the American West

TAMRA PEARSON d’ESTREE
University of Denver
BONNIE G. COLBY
University of Arizona

KLUWER ACADEMIC PUBLISHERS

NEW YORK, BOSTON, DORDRECHT, LONDON, MOSCOW

eBook ISBN: 1-4020-8129-4

Print ISBN: 1-4020-7503-0

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Boston

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Dedication

To dedicated professionals in the public, private, and non-governmental sectors
who have committed their skills and experience to creatively addressing

environmental conflicts - T.P.E. & B.G.C.

To my parents, Donnette and Marlyn Pearson, for wisdom, guidance, and
childhood camping trips that engendered a respect and love for the natural world;
and to my husband Claude and sons Jean-Marc, Alec, and Daniel, for their support

and sacrifices in the name of “the book”- T.P.E.

To my parents, Mason and Patricia Colby, with gratitude for daily examples of a

graceful and collaborative approach to life - B.G.C.

Contents

Foreword ix

Acknowledgements xiii

Authors xv

Parti: Developing the Framework 1

Chapter 1: Understanding ‘Success’ 3

Chapter 2: Defining and Evaluating Success in Environmental

Conflict Resolution with Connie J.A. Beck 15

Chapter 3: Comparative Case Analysis: Developing and

Applying Methods 55

Part II: Sample Cases 69

Chapter 4: The Mono Lake Case

Kathryn Mazaika 7 1

Chapter 5: The Pyramid Lake Case

Erin McCandless 107

Chapter 6: The Pecos River Case

Annette Pfeifer Hanada and London Hancock 157

Contents

viii

Chapter 7: The Snowmass Creek Case

Kristine Crandall 111

Part III: Comparing the Cases; Testing the Framework 205

Chapter 8: Patterns in Environmental Conflict Resolution:

Comparisons Across Cases 207

Chapter 9: Evaluating Criteria for Success 239

Chapter 10: Reflections on Resolving Water Conflicts 277

Appendix A: GUIDEBOOK for Analyzing Success in Environmental

Conflict Resolution Cases 299

Appendix B: Federal Policies Affecting Environmental Conflict
Resolution

Kathryn Mazaika 375

Appendix C: Applying the Economic and Financial Criteria 387

References 393

Index

401

Foreword

During the past twenty-five years there has been an exponential growth in
the number of environmental and natural resource conflicts. They occur at
local, regional, national and international levels and encompass an ever
increasing range of issues. Many have proven to be very difficult to
successfully resolve. A look at just a few arenas where conflicts have emerged
illustrates this trend.

Many significant conflicts have emerged over water, an essential element
for the life of human beings and other species. Water disputes have developed
over surface and groundwater development, use, allocation and quality. The
conflicts have involved diverse competing users - agriculturalists,
environmentalists, municipalities, companies, tribes and non-human species.
The disputes have often been highly contentious, protracted and costly in
terms of dollars, personnel and use of other limited resources.

Resource and land-use issues - conversion of agricultural land,
management and protection of forests and open spaces, urban growth and
suburban sprawl - have increasingly resulted in intense conflicts where
competing parties strive to their up-most to achieve their desired ends. As
populations have shifted, development patterns changed, and employment
opportunities declined or grown, there has been an increase in competition
over how land and associated resources are used, what development will or
will not occur, and how quality of life can be protected and preserved.

In response to the growing number of disputes, parties - governmental
agencies, the private sector, agriculturalists, environmentalists, other public
interest groups, tribes, and citizens - have explored and utilized a range of
approaches to address and try to resolve them. Procedures have included

Foreword

lobbying and legislative action, lawsuits and judicial rulings, administrative
hearings and decisions, mediated or facilitated negotiations, unassisted direct
talks, and nonviolent and violent direct action. Some approaches seem to have
been more successful than others, and proponents of specific processes have
often been quick to advocate the superiority of their preferred methods, and
have frequently been highly critical of others, often with little concrete data to
back up their claims.

Over the years, as environmental disputes have either been settled by
various approaches or continue to fester and periodically re-surface as parties
try yet again to resolve issues in dispute, participants, conflict management
professionals (in the broadest sense), and the general public have become
more concerned about the kinds of outcomes and impacts that result from
specific dispute resolution procedures. Specifically, they want to know 1)
which procedures are the most successful, and 2) whether it is possible to
predict success in the resolution of specific kinds of cases if one or another
dispute resolution procedure is utilized.

These two sets of questions related to “success” and “prediction”, are
critical for conducting careful analysis and evaluation of specific dispute
resolution processes. However, the first, that related to success, is the
foundation for all future assessment. Without a clear understanding of what
constitutes success, it is very difficult to compare dispute resolution
processes, and impossible to try to predict which ones will are more likely to
result in the outcomes desired by the involved parties.

Since the middle 1980’s users of various environmental conflict
management procedures, dispute resolution practitioners and researchers have
debated the merits and costs of various approaches. They have called for the
development of, rigorous means to evaluate the viability, success rate and
costs of various dispute resolution procedures. However, until the completion
of Braving the Currents, no comprehensive assessment process to define the
components of success, and operationalize them, has been developed.

After more than a decade of research on evaluation methodologies, and
extensive testing of their “success criteria” on a number of actual
environmental cases, d’Estree and Colby have developed the most
comprehensive set of criteria to date. Their framework for evaluating the
outcomes and success of various dispute resolution procedures can be utilized
by users, conflict management practitioners and researchers to evaluate the
outcomes of various disputes, and the procedures used to resolve them. In
their Guidebook, an appendix to this book, they outline step-by-step
procedures for assessing various types of “success” at various stages in the
evolution of a dispute and its termination.

Forewarcl

What is so significant about d’Estree and Colby’s work and development
of a framework for categories of success, measurement approaches and
outcomes? Why is the development of a standardized and operational set of
success criteria important?

First, their work enables us to develop a highly sophisticated
understanding of dispute outcomes and the meaning of success. Their
approach moves beyond the simplistic debate regarding whether settlement or
non-settlement should be the measure of success, and provides a rich set of
variables and dimensions that can be used to determine the various types of
successes that are possible.

Second, the framework provides an assessment methodology that can be
used across a wide variety of cases and procedures to effectively compare
outcomes. While the authors developed and tested the approach on a fairly
small number of water disputes in which a range of resolution approaches
were applied, the framework is equally applicable to other public disputes.

Third, if the evaluation framework and approach for assessing outcomes
and success is adopted widely by researchers, dispute resolvers and parties,
and data is collected on a significant number of conflicts, it will enable us to
begin to address questions of predictability - what kinds of outcomes and
successes can be expected when specific procedures are applied to various
types of disputes. This information will be of critical importance to
government agencies as they strive to build effective public policies and
dispute resolution systems, and to parties as they deliberate about approaches
that will best enable them to satisfy their interests.

Braving the Currents is an invaluable contribution to the field of dispute
resolution evaluation. It should be on the bookshelf of every researcher,
dispute resolution practitioner and program administrator. It is also a valuable
resource for parties engaged in conflicts to help them decide what kind of
outcomes they really want and which strategies to pursue to address and
resolve serious differences.

Christopher W. Moore
Partner, CDR Associates,
and environmental and water mediator

Acknowledgments

This research was supported by a grant from the Udall Center for Public
Policy at The University of Arizona to both authors. Directors Steven Cornell
and Robert Varady, and Program Director Kirk Emerson (now at the U.S.
Institute of Environmental Conflict Resolution) have been extremely
supportive of our efforts.

Eric Abitbol, Connie Beck, Annette Hanada, Kristina Jones, Shawn
MacDonald, Kathryn Mazaika, Erin McCandless, and Therese Suomi all
contributed to the research and writing of various sections of our larger
project which led to the development of this evaluation framework.
Framework development benefited from interviews with multiple unnamed
practitioners. Framework revisions emerged from discussions among
audiences of practitioners and scholars stimulated by its public presentation.
We acknowledge our debt to these creative and helpful audiences. We also
appreciate the constructive comments provided by Lawrence Susskind,
Christopher Moore, Gregory Sobel, Gayle Landt, Sarah Connick, Ariel Dinar,
and anonymous reviewers. All errors of omission and commission are the sole
responsibility of the authors. Monica Jakobsen, Tamara Zizzo, Nancy
Bannister, and Shay Bright provided competent and tireless editing of our
many manuscript revisions. Anne Enderby ushered the final manuscript into
its publishable form. Finally, we thank Marilea Fried, our editor at Kluwer,
for her support, encouragement, and unswerving patience.

Authors

Bonnie G. Colby is Professor of Agricultural and Resource Economics at The
University of Arizona, where she has been a faculty member since 1983.
Colby’s PhD is from the University of Wisconsin. Her expertise is in the
economics of natural resource policy and disputes over water, the public lands
and environmental regulation. She has authored over one hundred journal
articles and five books, including the books Water Markets in Theory and
Practice and Indian Water Rights: Negotiating the Future. She has provided
invited testimony on these matters to tribal councils, state legislatures and to
Congress. She served on the National Research Council’s Committee on
Western Water Management and on the National Academy of Science
committee investigating use of economic methodology by the Army Coips of
Engineers, involving billion-dollar proposed projects on US waterways. Dr.
Colby advises public and private sector organizations on managing natural
resources and resolving environmental disputes.

Tamra Pearson d’Estree, PhD in Social Psychology, Harvard University, is
Henry R. Luce Professor of Conflict Resolution at the University of Denver.
She has also held faculty appointments at the Institute for Conflict Analysis
and Resolution (ICAR) at George Mason University, and the Psychology
Department at the University of Arizona. Her research bridges conflict
resolution and social psychology, encompassing work on social identity,
intergroup relations, and conflict resolution processes, as well as on
evaluation research and reflective practice. She engages in conflict resolution
through leading trainings and facilitating interactive problem-solving

XVI

Authors

workshops in various intercommunal contexts, and she has directed and/or
evaluated projects aimed at conflict resolution capacity- and institution-
building in several U.S. and international communities.

❖ ❖ ❖

Contributors

Connie J. A. Beck, Ph.D., is an assistant professor of psychology in The
Psychology, Policy and Law Program at the University of Arizona. Her work
focuses on how the legal system creates or exacerbates psychological distress
and how it can be adjusted or restructured to minimize that distress. She is
currently focused on issues surrounding domestic violence in couples
mandated to attend divorce mediation.

Kristine Crandall has a M.S. in natural resource economics, with an
emphasis in water resources, from the University of Arizona. She has worked
as a consultant in the area of water policy and valuation for over 10 years,
assessing the benefits of water for instream uses including outdoor recreation
and habitat protection. She has also evaluated the costs and benefits of
proposed water projects. Since 1998, she has worked as a Research & Writing
Specialist for the Roaring Fork Conservancy, a non-profit watershed
conservation organization. She actively follows water quality and quantity
issues for the Conservancy, and is helping steer a collaborative project to
strategically plan for water management within the Roaring Fork Watershed.

Annette Pfeifer Hanada completed her BA in Cultural Anthropology at
DePaul University, and then studied Environmental Science and Policy at
George Mason University where she earned an MS. With a National Science
Foundation dissertation grant she conducted field research in Germany and
Japan, which lead to a doctoral degree in Environmental Science and Policy.
She was bom in Germany and lived for many years in Japan. She lives and
works in the Washington DC area.

Landon Hancock holds a Ph.D. in Conflict Analysis and Resolution from
George Mason University, and a BA and MA in international relations from
San Francisco State University. His research interests center around
comparative ethnic conflict causes, processes, intervention strategies and
long-term resolution, focusing on the elements of identity that drive these
conflicts. His articles have appeared in journals such as Civil Wars and

Authors

xv ii

International Studies Perspectives. He has taught at George Mason
University and American University, as well as one year teaching high school
in Japan.

Kathryn Mazaika, who works to protect natural resources both as a
professional, and volunteer in national parks around the San Francisco Bay
Area, brings her knowledge of conflict analysis to help resolve problems
related to natural resources. She holds advanced degrees in Conflict Analysis
and Resolution from George Mason University and Environmental Law from
Vermont Law. She also works as an independent researcher while completing
doctoral studies in conflict analysis and resolution. She is focusing on natural
resource issues, having gained insights from her earlier work on transportation
and air quality planning, forestry, and Superfund investigations with the U.S.
Environmental Protection Agency. In her recent work, she has studied
conflicts surrounding endangered species, water in the American West, and
how culture influences intractable conflicts.

Erin McCandless is a scholar - , practitioner and activist living in Zimbabwe.
She is founder and co-Executive Editor of the refereed, international Journal
of Peacebuilding and Development, a lecturer at Africa University in Mutare
and a co-director of/trainer with the South North Centre for Peacebuilding and
Development in Harare. She is a doctoral candidate with American University
in Washington D.C.

Parti

DEVELOPING THE FRAMEWORK

Chapter One

UNDERSTANDING ‘SUCCESS’

WHY ANALYZE SUCCESS?

Resource conflicts in the American West, and water conflicts in particular,
are complex, difficult and costly. The Yakima River adjudication currently
ongoing in the state of Washington involves 4,000 claims and 40,000 land
owners, and by the time it concludes will have taken over 30 years. 1 The Ari-
zona general stream adjudication involves 27,000 persons asserting 77,000
water rights claims. The Big Horn Case involving Wind River in Wyoming
has been to the U.S. Supreme Court once and the Wyoming Supreme Court
five times. 2 These conflicts represent huge social costs and drains on commu-
nities, industries, and societies. Formal judicial dispute resolution processes
have led to less than efficient and enduring solutions; consequently, alterna-
tive dispute resolution (ADR) processes have also been tried, with varying
levels of success. Though examples of successful resolution exist, we more
often hear of protracted litigation, frozen legislative bodies, and defensive
agencies and utilities.

Even with the enormous costs of conflicts, relatively little reflection exists
on what would be considered to be successful resolution, and even less work
exists on how one might document and demonstrate it. Collectively, we are
not yet clear on what we are trying to achieve when we resolve these costly
and protracted conflicts and what might be the most effective way for achiev-
ing these goals. What we lack is cumulative wisdom on the nature of success-
ful environmental conflict resolution. In order to identify “best practices” for

Chapter One

addressing disputes, success must be defined, and a framework for organizing,
comparing, and learning from past experiences is required.

Thus the impetus for this book. Systematic evaluation can help to develop
information about what works. Evaluation methods have as their primary goal
the provision of information that is not only useful, but which will actually be
used for decision-making and planning . 3 Evaluation methodologies provide
useful tools for capturing what actually happened during a given process, for
systematically assessing where goals were met and where shortfalls occur or
modifications are needed, and for actually documenting changes that have
taken place. We strive in this book to define success, to outline a framework
and method for documenting it, to use this method to compare cases, and then
to realistically evaluate the process of evaluation itself. We conclude with re-
flections for policy and process in environmental conflict.

The Call for Comparative Analysis

In the last decade, the call for comparative analysis and for lessons on
“best practices” in resolving environmental conflicts has become more urgent.
Those interested in ECR clearly have begun to critically consider “success”
and noteworthy evaluations of particular cases exist . 4 However, little effort
has been made to systematically evaluate the relative effectiveness of various
ECR processes using comparative analysis. Most writers on dispute resolution
start from an assumption that either litigation or ADR is preferable, and then
cite cases to support this argument. Fortunately, recent reviewers of the field
have noted this lack and have called for comparative analysis. For example,
Innes 5 calls for true comparative analysis within conflict resolution methods
(e.g., different consensus-building designs), across conflict resolution meth-
ods (e.g.: consensus-building and litigation), and even compared to other
methods of influencing environmental conflicts (e.g., lobbying and media
campaigns).

Similarly emphasizing the need for such analyses, Emerson 6 notes that re-
search in ECR suffers from two principal shortcomings. First, the research is
narrow and lacks effectively integrated relevant research from other fields.
Secondly, it is unfocused in that it draws on research related to any non-
litigation process rather than addressing well-defined forms of ECR. Emerson
also observes that the existing body of work includes very little comparison
across cases or dispute resolution methods, and argues that research on how to
evaluate ECR processes and outcomes is one of the essential tasks facing
ECR research. Emerson finds that most research has been performed at the
“micro” level, examining particular cases, and that “theory building” has fo-
cused on improved technique and better understanding of why specific dis-
pute resolution processes either achieve negotiated agreements or not. Macro
concerns such as the role of government agencies, the efficacy of outcomes

Understanding ‘Success ’

and the representativeness of the process are only beginning to be evaluated.
She notes, further, that environmental dispute resolution research has not ad-
dressed the relationships between mediation and more institutionalized fo-
rums, such as the courts and administrative processes. Emerson argues that
after two decades of experience with ADR, the time is ripe for more sophisti-
cated analyses and that the rich diversity of cases provides fertile ground for
analyses that can provide a better understanding of ECR and policy processes.

Finally, funding agencies that support varied work in conflict resolution
echo this concern. In their final report on the activities of the Fund for Re-
search on Dispute Resolution, the National Institute for Dispute Resolution 7
notes that workshops convened to discuss dispute resolution research high-
lighted a pre-occupation with how the outcome of dispute resolution proc-
esses should be evaluated and a strong concern for how evaluation measures
would be used. Despite widespread interest among practitioners and research-
ers, the report notes that research to date has not systematically examined how
best to measure success. The report to the Hewlett Foundation on their pro-
jects funded from 1984 through 1994 also noted the lack of research and con-
sensus regarding what constitutes “success” in resolving disputes. It reports
that only one study among the 18 Hewlett-funded centers focused on defini-
tions of quality in dispute resolution over that period. 8

Recognizing that the success or failure of a particular conflict resolution
effort depends on what one considers to be its goals and priorities, scholar-
practitioners have called for more systematic criteria for analyzing success
and more comparative case study analyses. In the field of dispute resolution,
multiple views on what constitutes “success” exist, and prior research has not
systematically examined how to measure it. In short, voices from numerous
quarters have concluded that additional substantive efforts are needed to fur-
ther our understanding of conflict resolution success, how it should be meas-
ured, and how the results of evaluation can best be used to improve dispute
resolution.

THE NEED FOR A FRAMEWORK

When we began this project in the mid-1990’s, little work had been done
on defining success in conflict resolution generally, much less environmental
conflict resolution in particular, and even less work had been done on how to
assess it. Scattered in the literature were several diverse, but often overlap-
ping, frameworks for considering success. 9 Using several strategies including
reviewing multiple literatures, interviewing practitioners and researchers, and
drawing from evaluation work in related fields, we worked empirically to as-
semble a comprehensive list of the varying ways that ‘success’ in conflict
resolution has been conceptualized. This work is documented in Chapter 2.

Chapter One

These criteria lent themselves very naturally to conceptual categories: (1)
Outcome 10 Achieved, (2) Process Quality, (3) Outcome Quality, (4) Relation-
ship of Parties to Outcome, (5) Relationship Quality Among Parties, and (6)
Social Capital [see Figure 2.1]. Our added conceptual organization stimulated
further reflection, discussion with practitioners and scholars, and the addition
of more criteria.

Even with these multiple definitions of success present in the field, very
few case reports address even a fraction of these many criteria. Typically,
case studies are written with a specific focus for a specific audience, and thus
may contain much information on certain criteria of successful resolution but
almost none on others. For one to make any comparisons among cases in or-
der to draw larger lessons becomes almost impossible, as one is forced to
compare case documentations that are, figuratively, apples and oranges. For
true comparison, cases must document similar criteria.

A clear need exists for a comprehensive framework and method for docu-
menting and reflecting on cases. Both stakeholders and practitioners who toil
daily with environmental conflicts, and researchers who observe and study
their patterns, need a framework for organizing and analyzing case informa-
tion. Potential users of such a framework include policymakers, practitioners,
agencies, researchers, educators, and students.

Policy makers must stretch limited budgets among budding ADR pro-
grams, agency litigation efforts and other activities related to environmental
conflicts. They would benefit from comparative work that evaluates the effec-
tiveness of different dispute resolution processes.

Alternative Dispute Resolution (ADR) practitioners and case managers
face demanding caseloads which can preclude them from writing the type of
reflective case analyses that could provide a cumulative evaluation of effec-
tive conflict resolution. A repository of consistently documented cases would
encourage more reflection and provide critical information for training new
generations of conflict resolution practitioners. As the field of alternative dis-
pute resolution is increasingly called upon to justify itself and “prove” its re-
sults, a framework for case reporting and analysis is needed to improve rigor
and consistency throughout the dispute resolution profession.

Individual practitioners also would find a comprehensive framework pro-
vides a useful vehicle for reflective practice and process design. Once a prac-
titioner became familiar with such an evaluation framework and the many
possible criteria for consideration, it would likely encourage reflection before
and during future interventions. What would initially be used ex post to evalu-
ate, could be used ex ante to design.

Many students who take courses on environmental conflict resolution and
environmental policy will not ultimately become practitioners. However,
many of them will work in public agencies, local or state government, or as
part of other groups involved in environmental conflict resolution processes:

Understanding ‘Success’

legislative staff, technical staff for environmental groups, engineers in corpo-
rations, etc. Understanding the multiple issues and dimensions of successful
environmental dispute resolution will make them better users and participants
in dispute resolution processes. A framework for thorough, yet succinct com-
parative case analysis would serve both university-level learning and students’
future analysis efforts.

In sum, the need exists for an analytic frame that will allow for further re-
flection and accumulation of wisdom regarding successful ECR. This book
introduces a framework that synthesizes much of the wisdom in the field
about what constitutes success in ECR.

TESTING THE FRAMEWORK ON WATER CONFLICT
CASES

Our task in this book is not only to address the need for accumulating ECR
wisdom, by providing a framework for defining and discussing success, as
well as a method for documenting it, but also to demonstrate the fruits of en-
gaging in case analysis - single and comparative - using the common frame-
work. We focus in particular on a domain of work that we authors share, the
resolution of complex water disputes, but this framework and method could
just as easily be applied, and has been applied, to other environmental and
public policy conflicts.

Case studies are necessary, both for providing a context for substantive
learning, but also for testing and refining the evaluation framework and
method. It is through application to actual cases that abstract success concepts
are transformed into concrete, measurable indicators. Through examining ac-
tual cases, we can determine where and how success actually “lives.”

Water conflicts provide an ideal domain for considering both the complexi-
ties of environmental conflict resolution and the multiple possible aspects of
success. Water conflicts, like many environmental and public policy conflicts,
involve multiple parties and multiple issues. They are broad in scope, and of-
ten endure for decades. The may seem neverending, as parties return for mul-
tiple rounds of litigation. Parties vary in their stakes in the outcome, their re-
sources, their power, and in their internal organization. Water conflicts inevi-
tably involve large amounts of information that is often technically complex.
These conflicts also often include a clash of cultures: between urban and rural
interests, between ethnic cultures, between traditional resource users (mining,
ranching) and new resource users (mountain bikers, hikers, and anglers), and
between different values and worldviews on the relationship of humans to the
environment.

After reviewing a larger set of water conflicts in the American West, eight
cases were selected for analysis. These cases were chosen based on their geo-

Chapter One

graphic diversity across the southwest, the range of issues contributing to the
conflict, the types of resolution mechanisms attempted, and preliminary evi-
dence that adequate data sources would be available for researchers to analyze
the cases. These cases included Big Horn River (Wyoming), Edwards Aquifer
(Texas), Lower Colorado River (Arizona, California, Nevada), Mono Lake
(California), Pecos River (Texas, New Mexico), Pyramid Lake (Nevada), Salt
River (Arizona), and Snowmass Creek (Colorado). Ligure 1 shows the loca-
tion of these cases. The eight cases are described in more detail in chapter 3,
and the complete analyses of four cases are reported in chapters 4-7.

These eight cases share the common thread of conflict over water resources
in the arid West, but also represent the common categories or character of
such conflicts. Cases include disputes over allocation of interstate rivers, con-
flicts between Native American tribes and non-Indian water users, and con-
flicts between instream needs and consumptive water uses. They involve en-
dangered species and overlapping jurisdictions. They also provide examples
of the multiple processes that may be used to resolve such disputes, including
negotiations, court proceedings, administrative actions, and legislation. While
it was necessary in the application of our framework for case study research-
ers to select a specific form of resolution (i.e., court ruling, legislation, etc.)
and specific time period in the course of the dispute in order to focus their
efforts, the histories of each case reveal a rich mixture of conflict management
processes. Litigation was a vital motivating factor at some point in every case.

By examining and considering the contributions of various forms of reso-
lution used to address these water conflicts, this study goes beyond prior ECR
research comparing across negotiated agreements or comparing litigation and
mediation. We felt it important to evaluate “success” across the variety of
resolution mechanisms actually used by parties to attempt to bring closure to
environmental conflicts, in order that we might best draw conclusions and
venture new hypotheses about the relative merits and possible contributions of
these various processes.

BENEFITS OF ANALYSIS AND REFLECTION

In the process of engaging in comparative case analysis using the common
framework, recognition of patterns and the accumulation of lessons and learn-
ing can begin. We began to appreciate both the richness and difficulties in
actually assessing success. We were surprised to learn how processes vary on
what type of successful resolution they attempt to achieve, in other words,
that not all processes are striving for the same goals. We began to understand
more clearly the tradeoffs among criteria and tradeoffs among goals in con-
flict resolution. We were intrigued to note the unique and potentially com-
plementary contributions of different conflict resolution methods. We were

Understanding ‘Success’

Sheridan*

WYOMING

Carson City

NEVADA

UTAH

★ Denver

COLORADO

CALIFORNIA

Los Angeles

ARIZONA

Albuquerque

NEW MEXICO

Phoenix

Case Studies \

1. Mono Lake, California \

2. Pyramid Lake, California, Nevada

3. Pecos River, Texas, New Mexico

4. Snowmass Creek, Colorado

5. Big Horn, Wyoming

6. Edwards Aquifer, Texas

7. Salt River, Arizona

8. Lower Colorado River, Arizona, Nevada, California

TEXAS

★ Austin

San Antonio

Figure 1.1 Case Study Locations

Chapter One

impressed by the various and creative ways that cases, and therefore commu-
nities, attempted to achieve successful resolutions and meet criteria. Finally,
we were excited by the goldmine of comparative learning that is possible by
noting both successful practices across cases, but also the important contribu-
tion of public policies to structuring the likelihood of communities’ success-
fully resolving their conflicts over water and other shared trusts, and the larger
lessons these suggest for public managers, policy makers, and concerned citi-
zens.

Users of this book will find numerous benefits. Practitioners will benefit
from the thoughtful reflection it encourages. Reflection on practice encour-
ages the advancement of expertise and the development of mastery and art-
istry." Even if one does not have time to thoroughly document a case, just
reading through the Guidebook will make one aware of the many dimensions
to consider. Though all criteria are seldom addressed in any one process, re-
flecting on the categories of what was achieved and what was not achieved
will be useful both for subsequent summarizing and reflection, but also for
influencing future practice. Practitioners also can be clearer with parties on
exactly what may be traded off, given the various process choices possible.

Users will find the Guidebook useful not only for information on criteria
and their documentation, but also as a roadmap for the many potential pitfalls
and hidden snags on the road to resolution. For example, have all signatories
ratified any official agreement? Have culturally effective methods for adver-
tising public meetings and soliciting public input been explored? The accom-
panying water conflict cases provide illustration of both best practices and
worst case scenarios, depending on the criterion of interest.

Students and scholars will learn more on the nature of evalu-
tion/measurement, case documentation, and comparative analysis. Are all cri-
teria equally accessible and measurable? Are they equally reliable as meas-
urement tools? What indicators in actual case documentation can be used to
measure this criterion? When should it be measured over the life of the case?
Does it apply to all types of conflict resolution processes (litigation, negotia-
tion, etc.) or only to some?

Diverse groups of professionals such as Congressional aides, technical staff
for environmental groups and corporations, and attorneys representing stake-
holders will benefit from a better understanding of the multiple dimensions of
successful environmental dispute resolution. This increased understanding can
make them more effective participants in dispute resolution processes. Stu-
dents of environmental policy, law, political science, and natural resource
management will benefit from exposure to systematic evaluation of cases and
conflict resolution processes. A framework for thorough, yet succinct, com-
parative case analysis will serve university-level learning, as well as agency
and corporate efforts to tackle environmental conflicts.

Understanding ‘Success ’

STRUCTURE OF THIS BOOK

In this chapter, we have introduced the goals and general outline of this
book. In Chapter 2, we consider past attempts to define and evaluate success,
including explicit attempts to develop evaluation frameworks. We draw con-
clusions from this review of others’ efforts to define and evaluate success. We
then propose a framework (with six categories of “success”) to organize the
twenty-eight criteria used in the definition of success, and examine each crite-
rion one by one. In closing, we discuss the implications of the inherent trade-
offs among criteria, their ties to values and policy, and the use of a common
framework in comparative analysis. This chapter is co-authored with our col-
league, Connie Allen Beck.

In Chapter 3, we review our methodology for applying these criteria to
case studies and for evaluating the value of the criteria themselves as meas-
urement devices. We discuss case study analysis as a methodology, and sum-
marize our cases in further detail. We describe the process of operationalizing
and testing each criterion on actual case data and developing the case analysis
Guidebook. We review the application of the Guidebook to our cases and
summarize our insights on systematic case study evaluation.

Chapters 4-7 present in full detail four of the eight case studies conducted
for this project. These four cases were chosen to demonstrate the benefits of
applying a common analytic framework (the same set of criteria) to various
cases that involve different issues and conflict resolution processes. We in-
clude cases which use an administrative rule promulgated by a state agency
(Mono Lake, authored by Kathryn Mazaika), a supreme court ruling (Pecos
River, written by Annette Hanada and Landon Hancock), a mediated negoti-
ated agreement followed by legislation (Pyramid Lake, written by Erin
McCandless), and state legislation followed by a negotiated agreement
(Snowmass Creek, authored by Kristine Crandall).

By applying a common analytic framework to the cases, we can thor-
oughly assess what was achieved in each case and begin to draw tentative
comparisons between the varying conflict resolution methods used in those
cases. In Chapter 8, we summarize the performance of each of our eight case
studies based on each of the criteria contained in our evaluation framework.
We note patterns across the cases, and the ways in which the parties and/or
authorities have addressed the challenges posed by varying criteria for suc-
cessful conflict resolution. We conclude Chapter 8 by comparing the cases
and resolution processes, and discuss the limits of these comparisons.

In Chapter 9, we explore the limitations of the criteria themselves. Clearly,
a wide array of success criteria exists from which to choose. As described in
Chapters 2 and 3, the choice of criteria is ultimately a question of values and
of the goals for a specific conflict resolution effort. However, certain criteria
may be more accessible and measurable, while other criteria, though accessi-

Chapter One

ble, may be more difficult to measure reliably. This critical examination of
the criteria is important in order to inform our goal of defining conflict resolu-
tion ‘success.’ In Chapter 9, we present our analysis of the accessibility, reli-
ability and validity of the varying criteria, as they were operationalized for
this analysis.

In Chapter 10, we examine how public policies interact with ECR and
suggest directions for public agencies and elected officials to take toward im-
proving ECR. We present examples of problem-solving and innovative strate-
gies drawn from the cases. We highlight findings about the criteria for suc-
cess, and we note that some criteria seem to have conflicting purposes, pre-
senting tradeoffs for policy-makers, agencies, and communities (For instance,
a thorough and inclusive conflict resolution process may rank high on Process
Quality but low on Process Costliness). We discuss special uses of the criteria
and applications that rely on subsets of the twenty-eight criteria. Finally, we
suggest avenues for future research to further our understanding of ECR.

Appendices are included to facilitate further case analysis. Appendix A
provides our case analysis Guidebook (also available in CDROM format from
the first author). Appendices B and C provide tutorials on the U.S. federal
policy framework and financial and economic criteria, respectively.

SUMMARY

This book showcases a new, comprehensive framework for evaluating
multiple dimensions of success in water conflict resolution and in ECR more
generally. The framework furthers the search for a more systematic under-
standing of how effectively different conflict resolution mechanisms perform
in specific conflict cases. The reflection that the framework and analysis en-
courages should also further more informed practice and a more conscious
and constructive integration of traditional and innovative resolution processes.
In addition, the evaluation framework can potentially be extended and adapted
to fit other research and assessment needs, such as conflict resolution within
communities and organizations and between nations.

It is our hope that the evaluation framework and method presented here fa-
cilitates the standardized documentation of the processes used to manage and
resolve environmental conflicts. This, in turn, can further the understanding of
how different processes perform with respect to various components of suc-
cess in resolving conflicts. Our ultimate hope is that our children and grand-
children’s generations will have learned from the bitter and extended envi-
ronmental conflicts of the late 20 lh century to devise more effective, durable
and just methods for resolving conflicts over natural resources in the new cen-
tury.

Understanding ‘Success ’

NOTES

1 Jim Pharris, Mary Sue Wilson, and Alan Reichman, Federal and Indian Reserved Water
Rights: A Report to the Washington State Legislature by the Office of the Attorney General
(Olympia, WA: Attorney General of Washington, 2002).

Mike Conner, Congressional Briefing: Background and Status of Indian Land and Water
Claims (Department of Interior Ad Hoc Group on Indian Water Rights, 2001).

3 AEA Task Force on Guiding Principles for Evaluators, “Guiding Principles for Evaluators,”

New Directions for Program Evaluation (Summer, 1995): 19-34. See also Patton, M.Q.
Utilization-Focused Evaluation (Thousand Oaks, CA: Sage Publications, Inc., 1997)

4 J.C. Neuman, “Run River Run: Mediation of a Water Rights Dispute Keeps Fish and Farmers

Happy for a Time,” University of Colorado Law Review 67 (Spring 1996): 259-339.; Innes
(1999) cites case studies by Corburn (1996), Southeast Negotiation Network (1993), Kerwin
and Langbein (1995), and the Consortium on Negotiation and Conflict Resolution (1994).
5 Judith E. Innes, “Evaluating Consensus Building,” in Consensus Building Handbook, 1999.
For a recent example of comparative case study analysis in environmental conflict resolu-
tion, see Lawrence Susskind, Sarah McKearnon, and Jennifer Thomas-Larmer, eds.

6 Kirk Emerson, A Critique of Environmental Dispute Resolution Research, Presentation to the

Conflict Analysis and Resolution Working Group Seminar, University of Arizona, April,
1996.

7 National Institute for Dispute Resolution, Final Report: Fund for Research on Dispute Reso-

lution (Washington DC: Author, 1996).

8 Robert A. Baruch Bush, Report on the Assessment of the Hewlett Foundation’s Centers for

“Theory Building" on Conflict Resolution (Hewlett Foundation, 1995).

Gail Bingham, Resolving Environmental Disputes: A Decade of Experience (Washington,
DC: The Conservation Foundation, 1986); E. Brunet, “Questioning the Quality of Alterna-
tive Dispute Resolution,” Tulane Law Review 1, no. 62 (1987): 1-56; Leonard G. Buckle, &
Suzann R. Thomas-Buckle, “Placing environmental mediation in context: Lessons from
failed mediations,” Environmental Impact Assessment Review 6 (March 1986): 55-70;
Robert A. Baruch Bush, “Defining Quality in Dispute Resolution: Taxonomies and Anti-
Taxonomies of Quality Agreements,” Denver University Law Review 66 (1989): 335-380;
Robert A. Baruch Bush, Report on the Assessment of the Hewlett Foundation’s Centers for
“Theory Building" on Conflict Resolution, 1995; A. Bruce Dotson, “Defining Success in
Environmental and Public Policy Negotiations,” Unpublished manuscript; H.T. Edwards,
“Commentary: Alternative Dispute Resolution: Panacea or Anathema?” Harvard Law Re-
view 99, (1986): 668-684; Judith E. Innes, “Evaluating Consensus Building," in Consensus
Building Handbook, eds. Lawrence Susskind, Sarah McKearnon and Jennifer Thomas-
Larmer, 631-675 (Thousand Oaks, CA: Sage Publications, 1999); James S. Kakalik,
Terence Dunworth, Laural A. Hill. Daniel McCaffrey, Marian Oshiro, Nicholas M. Pace,
and Mary E. Vaiana, An Evaluation of Mediation and Early Neutral Evaluation Under the
Civil Justice Reform Act (Report produced by the Institute for Civil Justice, Rand, Santa
Monica, CA, 1996); National Institute for Dispute Resolution, Final Report: Fund for Re-
search on Dispute Resolution (Washington DC: Author, 1996); Dean G. Pruitt, Robert S.
Pierce, Neil B. McGillicuddy, Gary L. Welton, and Lynn M. Castrianno, “Long-Term Suc-
cess in Mediation,” Law and Human Behavior 17 (1993): 313-330; Lawrence Susskind and
Connie Ozawa, “Mediated Negotiations in the Public Sector,” American Behavioral Scien-
tist 27, no. 2 (1983): 255-79; William Ury, J. M. Brett, and S.B. Goldberg, Getting Disputes

Chapter One

Resolved: Designing Systems to Cut the Costs of Conflict (San Francisco: Jossey-Bass Pub-
lishers, 1988).

10 An “Outcome” may be a negotiated agreement, a court ruling or a legislative or administra-

tive resolution of a conflict. See Chapter 3 for a further discussion of terms.

11 Donald A. Schon, The Reflective Practitioner (New York: Basic Books, 1983); M.D. Lang,

and A. Taylor, The Making of a Mediator: Developing Artistry in Practice (San Francisco:
Jossey Bass, 2000).

Chapter Two

DEFINING AND EVALUATING SUCCESS IN
ENVIRONMENTAL CONFLICT RESOLUTION

With Connie J.A. Beck

In the world of complex and lengthy resource conflicts, parties have been
compelled to try various paths for resolution. While numerous attempts have
been made to claim benefits for these various conflict resolution processes,
few systematic attempts have been made to outline criteria for defining suc-
cess.

In this chapter we attempt to define success, and consider how it might
also be measured. Building on a review of relevant work in several fields as
well as practitioner insights, we identify and develop criteria for evaluating
the merits of environmental conflict resolution (ECR) procedures and propose
an organization for such criteria into six conceptual categories. This organiza-
tion highlights the various categories possible for criteria that assess environ-
mental conflict resolution and should assist practitioners seeking to identify
“best practices” and researchers seeking a framework for comparative analy-
sis.

Although the last decade has seen increasing interest and attempts to judge
effectiveness in conflict resolution domains , 1 attempts to define and measure
effectiveness in resource conflicts have been relatively rare. We consider first
those works focusing on “success” within the domain of resource disputes,
and then we review useful contributions from evaluations of conflict resolu-
tion processes in other domains.

Chapter Two

RESOURCE DISPUTES

Susskind was one of the first to propose criteria for evaluating dispute
resolution processes. In 1981, McCrory 2 summarized one ofSusskind’s earli-
est presentations on criteria “forjudging the fairness of a mediation process
and the quality of the mediation agreement.” Susskind and his colleague
Ozawa offered the following refined list of criteria in a subsequent article: 3

1) the negotiated agreement is acceptable to the parties;

2) the results are perceived as fair by the community;

3) the results maximize joint gains;

4) the results consider past precedents;

5) the agreement is reached with minimal expenditure of time and
money; and

6) the process improves relationships among the disputants.

In reviewing criteria such as these and others. Buckle and Thomas-Buckle 4
point out that such criteria should be evaluated not against some absolute
standard, but in comparison to other options available - such as litigation or
continuation of the dispute without resolution. They observe that the majority
of environmental disputes presented for mediation do not result in a fully im-
plemented agreement and thus they explore the value mediation might pro-
vide aside from achievement of an implemented agreement.

Buckle and Thomas-Buckle examined mediators’ records and interviewed
mediators and disputants in 81 cases. In ninety percent of the cases examined,
no agreement was reached. They found that while mediators judged success
on the basis of whether an agreement was reached, the disputants had a much
broader view of the benefits of mediation. Many of these benefits were proc-
ess related and included: (1) training in negotiation and communication skills;
(2) more frank and open dialogue among the parties; and (3) generation of
new options for problem solving. Regulatory agency representatives involved
in the cases found the mediators helpful in clarifying the issues and interests
and in assembling technical information, all of which was valuable when the
cases proceeded to an administrative hearing. Many parties noted that media-
tion was valued as an indication of good faith that might serve them well
when they appear before a judge. Buckle and Thomas-Buckle conclude that
success should be defined far more broadly than just in terms of agreements
achieved and implemented, and ‘success’ should incorporate the benefits that
mediation sessions provide to participants in subsequent processes, such as
judicial and administrative hearings.

Bingham’s 1986 book 5 remains the most thorough examination of alterna-
tive approaches to resolving environmental disputes and the most explicit at-

Defining and Evaluating Success in Environmental Conflict Resolution

tempt to document and evaluate resolution attempts. Her data were based on
interviews with mediators and other parties involved in over 160 environ-
mental disputes. Bingham observed that parties care about the outcome of a
dispute resolution process, specifically they care about the stability, longevity,
and implementability of any agreement that was reached, and the extent to
which it satisfies their own interests and what they perceive to be the public
interest. Parties also care about the process itself — whether it is perceived as
fair and legitimate, whether it is efficient, and whether they were able to in-
fluence the outcome. If the parties have an ongoing relationship, then they
also care about whether the process enhances the quality of that relationship
and their ability to communicate with one another.

Bingham compared 132 environmental dispute resolution cases with an
index based on two criteria: whether or not an agreement was reached, and
whether implementation was full, partial, or not at all. Of the 78% of cases
that did reach an agreement, the majority were either fully or partly imple-
mented. Bingham acknowledged that this analysis did not reflect other poten-
tial criteria such as satisfaction, fairness, and improved communications.

Bingham also attempted to examine the ‘efficiency’ of mediation as com-
pared to litigation, focusing on time and costs expended to reach a decision as
the measurable components of efficiency. She observed that systematic com-
parisons between litigation and mediation proved difficult, being confounded
by three issues: lack of closely parallel cases that took the different tracks, the
fact that many disputes involve a combination of litigation and negotiation,
and the lack of comprehensive data on costs and time delays incurred by the
various parties to a dispute.

More recent studies comparing mediation with litigation argue for both
cost savings and higher satisfaction. In a recent national survey of environ-
mental and natural resource attorneys’ attitudes regarding ADR, O’Leary and
Husar 6 found that attorneys considered ADR a source of significant savings
for parties, with the average savings to clients who chose ADR over litigation
estimated at $168,000. This finding echoes those of Kloppenberg, 7 who found
that in a demonstration project on the use of ADR in federal district courts,
attorneys reported parties’ substantial cost savings of several thousands of
dollars as well as satisfaction with the results. Similarly, in their study of 100
land disputes assisted in resolution by a professional neutral, Susskind, van
der Wansem, and Ciccarelli 8 found that 81 percent of participants felt their
mediation had consumed less time and money than would have been con-
sumed by their same dispute had it been resolved through more traditional
adjudicatory processes. Most attorneys in O’Leary and Raines 9 Environmental
Protection Agency study felt that “ADR saved time and money.” A study by
the Oregon Department of Justice 10 for the Oregon legislature compared the
costs of several forms of dispute resolution across diverse types of disputes,
and found mediation averaged the cheapest at approximately $9,537, while

Chapter Two

taking a case through to trial was the most expensive, at $60,557. A summary
of evidence for the cost-effectiveness of ECR can be found in Orr’s briefing
for the U.S. Institute for Environmental Conflict Resolution. 11

O’Leary and Husar’s 12 survey highlighted other benefits of ADR as well,
which in turn suggest additional success criteria. These include fairer cost al-
location, solutions more likely to benefit all parties, agreements on remedial
measures, better understanding of other parties’ interests, resolution of diffi-
cult technical issues, and long-term benefits such as environmentally benefi-
cial projects and positive corporate-government relations. Even when the pri-
mary controversy is not settled, benefits mentioned include allowing hostile
parties to communicate and share information that otherwise might not have
been shared, better pretrial preparation and issue clarification, a ‘reality
check’ for parties on options and possibilities, and commitment among parties
to creating their own solution.

Yet another attempt to examine and frame effective environmental conflict
resolution produced what came to be known as the “Park City Principles.” 13
In 1991, the Western Governor’s Association and the Western States Water
Council held three workshops on Western water management in Park City,
Utah. The workshops included federal, state, and local governments, Indian
tribes, private users, and academics. The attendees wanted to improve West-
ern water management by considering competing demands and attending to
the public interest. The group authored a set of principles which are meant to
serve as a guide to institutions developing and implementing effective water
policies.

These principles included the following core components: recognition
(both legal and administrative) of diverse interests and values; a holistic or
systemic approach that encompasses all affected interests and needs within
the “problemshed” (i.e., basin-wide, rather than within traditional political
boundaries); a policy framework that is responsive and balances flexibility,
adaptability, and predictability; a decentralized approach that recognizes the
role of states and tribes; a focus on negotiation, incentives, and performance
standards, rather than command and control; and encouragement of broad-
based participation in both policy development and administration. 14

Neuman’s 15 case study on mediation in the Umatilla Basin (located in
Oregon) focuses on satisfaction and on the quality of the substantive outcome,
concluding that while mediation has much to recommend, it does not assure a
superior substantive outcome when compared to litigation or other dispute
resolution approaches. She measured the disputants’ satisfaction with the
process and the outcome and, in addition, evaluated both the mediation proc-
ess and the substantive outcome.

Neuman defines several products that dispute resolution processes can
provide: private goods, public goods, and hybrid goods. Private goods are
those benefits provided to the disputants for which they are willing to expend

Defining and Evaluating Success in Environmental Conflict Resolution

time, money, and other resources. Private goods include getting the problem
solved, the satisfaction of being heard and being treated fairly, and other psy-
chological satisfaction.

Public goods are those benefits that extend beyond the disputants them-
selves. These include an outcome that is consistent with laws, policies, and
public values and also “just” in the broad sense of the right thing being done.
Therefore, public goods encompass the production of a fair process and out-
come in a manner that builds confidence in dispute resolution mechanisms.
This helps create constructive precedents to guide future disputes. Public
goods also include the enhancement of the overall credibility and legitimacy
of the social system.

A hybrid category of products includes those that combine public and pri-
vate good aspects: resolution of the dispute in an expedient manner without
excessive costs or delays; provision of a forum for creative and flexible solu-
tions that address the array of the parties’ needs and interests; and building of
commitment and legitimacy for the outcome by giving the parties control over
the process (as contrasted with giving the courts control and having legiti-
macy stem from court authority). The most important of the hybrid goods is
the ability of dispute resolution to create, preserve, and enhance working rela-
tionships among the parties and, therefore, build the parties’ capabilities for
solving problems together.

In order to evaluate the process and outcome independently of the partici-
pants’ evaluations, the author examined four components of the process and
outcome: the mediation process itself, the resulting natural resource alloca-
tion, the implications for resolving public policy disputes, and the implica-
tions for regional water management.

With regal'd to providing the public goods mentioned earlier, Neuman
suggests that a conflict resolution process be evaluated as to whether a rea-
soned outcome is created, consistent with public policies and values. In addi-
tion, the outcome should be perceived as just, enhance confidence in the gov-
ernment and law, and build legitimacy and consensus about working within
the system. Neuman’ s final evaluative measure is that the outcome sets a con-
structive precedent for future similar disputes.

In June 1997 two organizations, Resolveand the National Institute for Dis-
pute Resolution, 16 convened a roundtable in Washington, D.C., for research-
ers and practitioners. Criteria discussed as characterizing a successful process
were: including all relevant parties, promoting problem-solving, de-escalating
the conflict, building empathy among participants, empowering and giving
voice to less powerful interests, generating a decision (which may or may not
constitute a consensus agreement) that is well-informed, building institutions
for future policy decisions, setting a good public policy precedent, contribut-
ing to a good track record for ADR, and positively influencing future interac-
tions. Group dialogue emphasized a diversity of approaches to defining sue-

20 Chapter Two

cess and the need for systematic research on evaluating and measuring various
components of success.

Dotson (undated) 17 both embraces and rejects a signed agreement as the
critical criterion for success. He considers the 60 cases he and his colleagues
have so far facilitated for the Institute for Environmental Negotiation at the
University of Virginia, and found half of the cases explicitly strove for this
goal, while the other half had primary objectives other than a signed agree-
ment. He considers cases with signed agreements to be the “classic suc-
cesses.” Projects he and his colleagues considered “successful” that did not
include a signed agreement were often designed for achieving other purposes.
These other purposes included clarifying and developing general consensus
on public policies or scientific opinion, training parties in negotiation skills,
identifying issues and developing conflict assessments, developing a common
agenda, developing a common sense of needs and opportunities, or reaching
better mutual understanding and improving relationships. He draws parallels
with Carpenter and Kennedy’s 18 non-hierarchical list of goals for conflict
management strategies that includes exchanging information, identifying is-
sues and interests, developing acceptable options, and developing recommen-
dations, in addition to reaching agreements.

Of those cases Dotson examined that sought agreement, slightly over half
failed to reach it. However, other areas of achievement fell into three catego-
ries: improved understanding, improved relationships, and improved process.
Improved understanding included scrutinizing existing frameworks, creating
new solutions, stimulating later change in parties, and establishing a new
“base camp” for the next round of negotiations. Improved relationships in-
cluded restoring community where it was lacking (and thereby possibly
“dampening the ardor for litigation”), bringing parties together without their
attorneys, and rebuilding trust through honest communication. Finally, an im-
proved process included establishing new mechanisms for ongoing
communication and dialogue, fostering intercultural understanding so that
future rounds (e.g., appeals) are confined to narrow and specific areas of the
dispute, and creating momentum and interest in future phases of joint
problem-solving.

Dotson wonders if “conclusive resolution” is the appropriate goal. He con-
cludes with a concern that if written agreements were the only standard of
success, some might (erroneously) take on only those cases that are likely to
reach an agreement. This is a difficult but important point. Dotson argues that
perhaps success of a mediation effort should be evaluated by looking forward:
What does it create, rather than what does it resolve? Even if an agreement
were not signed, an effort could be considered successful if it were seen as
moving parties and institutions toward a sustainable society.

In her seminal contribution on the evaluation of consensus-building proc-
esses, Innes 19 considers both the challenges and opportunities presented by

Defining and Evaluating Success in Environmental Conflict Resolution

doing evaluation. She considers criteria of process to be the ultimate bell-
weather of consensus-building success, in that “consensus-building stands or
falls on the acceptability of its process.” 20 She considers the process of
evaluation to be difficult, requiring many different methods. However,
evaluation can prove useful to various people at all stages of the consensus-
building process -before, during, and after.

Before Innes ventures into her discussion of criteria, she first considers the
possible outcomes of consensus-building in addition to, or possibly instead of,
an agreement. She suggests that these outcomes fall into four categories: (1)
new relationships (increased trust, decreased future conflicts), (2) new part-
nerships, organizations, and processes, (3) knowledge and learning (about
issues, about others’ concerns and constraints, about new possibilities and
problem frames), and (4) social, intellectual, and political capital.

Innes’ most revolutionary contribution is her application of the theories of
self-organizing systems, or “complexity theory,” 21 to understanding the possi-
ble contributions of consensus-building. She considers the typical context for
consensus-building as one on the “edge of chaos” where rapid and ongoing
adaptation by the system is required. Processes for resolving conflict in such
contexts must allow for such self-organization, feedback, and information
sharing. Thus additional criteria for successful conflict resolution should ad-
dress a system’s new or improved capacity to successfully undergo such on-
going adaptation and respond to an ever-changing context.

In addition to those just mentioned, other process criteria she ventures in-
clude building civil discourse (respectful, face-to-face, equal access to infor-
mation), inclusiveness, purpose-driven, engaging, incorporating high quality
information, challenging of assumptions, and thorough in exploration of is-
sues and creative responses. Innes argues that if process criteria are met, then
the outcome criteria outlined above will also likely be met.

Using the New Community Meeting (NCM) model and content analysis in
their study of a community consensus building process, Gwartney, Fessenden
and Landt 22 looked for success by asking three questions: First, did the proc-
ess increase new types of positive interactions among previously alienated
individuals and groups; second, did the process encourage core participants to
promote collaboration beyond their group to peers and other previously alien-
ated individuals and groups; and finally, did the process encourage core par-
ticipants, their peers and their constituents to collaborate in a way that bene-
fited the larger community? Gwartney and colleagues found through content
analysis of four community newsletters that following consensus building
processes, positive interactions improved in type and tone, previously alien-
ated constituencies referred to one another in more positive and less alienated
tones, and all parties increasingly collaborated to benefit the larger commu-
nity.

Chapter Two

While attempts to outline criteria for evaluating successful environmental
conflict resolution have been relatively rare, common themes can be seen
across the varying works reviewed above. For example, there seems to be al-
most universal agreement that ‘agreement’ is only one of many possible crite-
ria. Fairness, “soundness,” and flexibility of the agreement are important, as
are other outcomes such as new options, improved relationships among the
parties, and increases in parties’ skills and understanding. Parties’ satisfaction
with both outcomes and process is also important. The process should also be
perceived as fair, inclusive, relationship-building, and judicious in its use of
time and money. Finally, long-term criteria for success, when discussed, focus
on agreement implementation and parties’ improved capacity to address fu-
ture conflicts and to collaborate more broadly. These themes find their ana-
logs in calls for evaluation in conflict resolution more generally.

GENERAL CONFLICT RESOLUTION

As interest in questions of effectiveness and evaluation has increased
throughout the field of conflict resolution, writers have struggled to define
criteria and frameworks. Some writers confine their analysis to a particular
domain, such as family mediation or court-annexed mediation, while others
attempt to address general processes. The categories of criteria outlined in
these works can supplement our consideration of criteria discussed in the en-
vironmental domain.

Ury, Brett, and Goldberg 23 draw on their experience with manage-
ment/labor disputes in the coal industry to examine the costs of disputes and
dispute resolution processes and to develop potential mechanisms for mini-
mizing those costs. They suggest that the following four factors be examined
to evaluate dispute resolution approaches:

1) Transaction Costs - the costs generated by the dispute itself and
of reaching a solution, including direct costs and opportunity
costs of time and money, decline of working relationships, dam-
age incurred by the parties to their reputations as well as their as-
sets, loss of their social capital (good will) and limited ability to
expend social capital on other matters or on future disputes.

2) Satisfaction with outcome - the degree to which affected parties
are satisfied with the outcome of the dispute and the process used
to achieve that outcome.

3) Durability of solution - endurance of the agreement over time.
The degree to which the solution discourages recurrence of the
same or of similar disputes, and the degree to which it is enforce-
able and implementable in a manner that discourages further dis-
putes over implementation.

Defining and Evaluating Success in Environmental Conflict Resolution

4) Effect on relationships - the degree to which the process im-
proves and maintains functional working relationships among the
parties.

Ury, Brett, and Goldberg note that the four criteria are interrelated. For ex-
ample, dissatisfaction with a dispute resolution outcome or process implies a
strain on relationships, which can lead to a higher probability of recurrence of
the dispute and thus to higher transaction costs. Sometimes the disputants
might choose to incur higher transaction costs up front through extended in-
formation gathering and negotiating in order to reduce strain or dissatisfaction
over the longer run. The four categories and their associated costs can collec-
tively be called the “costs of disputing.”

Pruitt, et al. 24 studied long-term success in community mediation through
analysis of recorded remarks during mediation sessions and interviews with
participants. They defined short-term success as reaching an agreement, being
satisfied with it, and reaching mediation goals; they defined long-term success
as complying with the agreement in the long-term, improving relationship
quality, and avoiding new problems. Surprisingly, they found that clarity and
feasibility of the agreement were unrelated to compliance or any other aspect
of long-term compliance. In fact, in their study, no relationship was found
between short- and long-term success as they defined them. However, the
perception that mediation was fair (procedural fairness) and thorough was
positively related to long-term success, as defined above. The implication of
their work is that long-term success is not connected to the agreement itself,
but rather to how the parties viewed the process and changes in the quality of
their relationship.

Kakalik, et al. 23 looked at the use of mediation and early neutral interven-
tion in six federal district courts that had implemented pilot programs to re-
duce delays and litigation costs as mandated by the Civil Justice Reform Act
of 1990. The six programs differed considerably in their features, including
whether use of ADR was voluntary or mandatory, the point in the litigation
when referral to ADR occurred, the number and length of ADR sessions, the
type of provider, and the costs to the parties. Of the three-hundred litigation
cases examined in each of the six districts, half were referred to ADR. The
comparison group remained in the traditional court process which included
bilateral negotiations and judicially facilitated settlement or adjudication.

Nine criteria were used to compare the ADR and non-ADR cases. These
were: (1) time to disposition measured from first filing to case closing; (2)
costs to the parties (defined primarily in terms of lawyer work hours per liti-
gant, but also by examining monetary legal costs and time spent by the liti-
gants on the case); (3) costs to the court of start up and administration of the
ADR program; (4) likelihood of monetary exchanges between the litigants;
(5) likelihood of settlement when cases are referred to ADR; (6) lawyer and

Chapter Two

litigant perceptions of how fairly the cases were managed; (7) lawyer and liti-
gant satisfaction with case management; (8) lawyer and litigant satisfaction
with the ADR process itself; and (9) overall opinions and recommendation of
litigants, lawyers, and ADR providers.

The data came from court records including detailed case processing and
docket information for the cases studies; mail surveys of ADR providers (66%
response rate), lawyers (50% response), and litigants (12% response, no statis-
tical analysis conducted on litigant response data); personal interviews with
judges, ADR providers, court staff, and lawyers during site visits to each of
the six districts; and each district’s cost and delay reduction plans and reports
produced to comply with the 1990 Act. Analysis of the data showed no sig-
nificant difference in time to disposition, lawyer work hours per litigant, law-
yers’ perceptions of fairness of case management and satisfaction with case
management between ADR cases and non-ADR cases. ADR cases in all six
districts were more likely to produce a monetary exchange than litigated
cases, and settlement of ADR cases ranged from 31 to 72% across the six dis-
tricts, with a correspondence between higher settlement rates and holding the
first ADR session later in the litigation process. Attorneys noted that ADR
sessions held “too early” are not useful as the parties are not ready to settle
and ADR seemed more likely to produce a settlement when it was initiated
after the litigation discovery process had already revealed basic facts and po-
sitions on the issues.

By contrast, Wissler’s 26 large study of 1,730 general civil cases mediated
in Ohio in the period 1992-2000 found that ADR was most useful when it oc-
curred early in the case. Mediations were drawn from cases filed in nine dif-
ferent Ohio courts of common pleas. Data was collected from mediation exit
questionnaires completed by attorneys, parties, and mediators. Wissler found
that “when mediation was held sooner after the case was filed, settlement was
more likely, fewer motions were filed, and the case disposition time was
shorter, even in cases that did not settle in mediation.” 27 Because many of the
studies comparing ADR and non-ADR cases use ADR cases with long peri-
ods between filing and mediation, this finding may help to clarify some of the
mixed results in the literature. In her extensive review of other civil mediation
studies comparing ADR and non-ADR cases, Wissler notes these mixed re-
sults or no differences between ADR and non-ADR cases in time from filing
to resolution/agreement, in amount of discovery, or in compliance rates.

Organizing criteria into clusters or categories can begin to surface the un-
derlying values that guide any evaluation process. Bush 28 reports on a work-
shop hosted by the University of Wisconsin Law School in 1987, attended by
dispute resolution practitioners and researchers, and devoted to identifying
and measuring quality in dispute resolution processes. He identifies six clus-
ters of quality components as emerging from the workshop:

Defining and Evaluating Success in Environmental Conflict Resolution

1) Individual satisfaction - the parties feel satisfied with the process
and the outcome;

2) Individual autonomy - the parties’ capacity to resolve their own
problems without reliance on external institutions is enhanced;

3) Social control - public and private institutions are strengthened in
their ability to control social unrest and to minimize exploitation
by special interests;

4) Social justice - existing inequities in distribution of power and
wealth are ameliorated, or at least not exacerbated;

5) Social solidarity - common values and reference points are pro-
vided and reinforced, increasing solidarity in a pluralistic society;
and

6) Personal transformation - disputants have the opportunity to grow
and change, becoming less self-centered and more responsive to
other interests.

As the workshop participants noted, these are not complementary criteria
that can be applied as a set to evaluate any particular process. Rather, they are
to some degree mutually inconsistent and competing objectives, among which
tradeoffs will have to be made or at least priorities established.

Bush argued that ambiguities in values prevent meaningful application of
the criteria to evaluate actual disputes and that criteria for evaluating quality
are inextricably linked to one’s vision of an ideal society and so no universal
definitions of quality can be expected to evolve. In particular, he notes that the
quality criteria for an individualistically-oriented evaluator will differ mark-
edly from those of an evaluator with a collective vision of society. He sug-
gests that no single set of criteria for defining success will emerge given di-
versity in social vision and that perhaps the best we can hope for is careful
elucidation of the vision underlying a particular set of criteria.

This diversity in underlying values and priorities is reflected in ongoing
debates in the literature about the relative efficacy of various conflict resolu-
tion processes. For example, Edwards 29 articulated the concern that informal
ADR problem-solving processes must not be allowed to erode the role of the
courts in disputes where broad public values are at stake. In particular, he
warned that mediation of environmental disputes, such as toxic waste cleanup,
may allow private groups to establish standards for cleanup without the
checks and balances of a formal process with public scrutiny and the rigorous
application of environmental law. Such agreements, he argued, are negotiated
and then presented de facto to regulatory officials who then must approve
them or send the disputants back to protracted litigation. He also argued that
matters of national policy cannot be mediated without the hazard of “second
class justice,” i.e., decisions not accountable to law and public policy. He
concluded by noting that ADR has a place in disputes where the law is well
defined and disputants cannot delimit public rights in a manner convenient to

26 Chapter Two

resolving their dispute. Clearly, he remains wary of ADR applied to policy
disputes.

Brunet 30 also questioned whether ADR can provide the same quality of
justice as court rulings. He argued that ADR processes undermine the func-
tion of substantive law in promoting clear norms, guiding social behavior, and
upholding the public values that underlie legal principles. Consequently, soci-
ety as a whole may be worse off, even if the direct disputants have negotiated
a solution that satisfies them. The law may be progressively undermined as
“creative solutions” send a pernicious signal that the rights and duties of the
law are no longer paramount and are unworthy of enforcement. He posited
that widespread use of ADR may increase the number of disputes by causing
legal norms to atrophy so that potential disputants no longer have a strong
incentive to abide by the letter of the law as they can negotiate away some of
the consequences of non-compliance.

Brunet observed that litigation produces public goods, beyond the effects
on the litigants themselves. The cumulative stock of court decisions improves
and clarifies the law over time, reducing costs and uncertainty for future dis-
putants. ADR, he argues, bypasses the need to develop and publicize substan-
tive law on matters of public importance. Further, ADR has no clear guide-
lines for gathering and exchanging information as the courts require in dis-
covery procedures, raising the possibility that decisions made through ADR
may not be based on full and accurate information.

In addition, Brunet posits that the absence of a judge, an effective and
credible public authority, diminishes the quality of ADR outcomes, as does
the absence of requirements for adequate legal representation for each party.
He concludes by observing that ADR provides a competitive impetus to the
attorneys and judges to better address excessive delays and costs, and that
court-annexed ADR may be an excellent mechanism for ensuring that sub-
stantive law and procedural concerns are incorporated into ADR processes.

Clagett 31 echoes many of Brunet and Edwards’ concerns while acknowl-
edging ADR’s place in environmental problem-solving. Regarding negotiated
rulemaking and policymaking, he urges both EPA and the U.S. Institute for
Environmental Conflict Resolution (IECR) to address the following tensions:
serving the public interest versus seeking consensus, confidentiality of issues
that should be subject to public scrutiny, balancing power and political legiti-
macy, the need for professionals trained in dispute resolution methods who
also understand complex environmental frameworks, and finally, differences
between EPA and IECR systems of dispute resolution.

Thus, those critical to ADR provide alternative criteria for success that
must be considered when comparing litigation with negotiation, consensus-
building or other environmental conflict resolution processes. These include
the quality of the outcome from the perspective of ‘the public’ (“public scru-
tiny”) or someone in whom the public has vested judging powers, the prece-

Defining and Evaluating Success in Environmental Conflict Resolution

dent set by the outcome and the clarity it adds to future dispute resolution at-
tempts, and that the decision or agreement be based on full, shared, and accu-
rate information, and address existing environmental law.

In reviewing various frameworks for evaluation of conflict resolution in
domains outside environmental conflict resolution, we once again find com-
parable themes. Agreements can be assessed for clarity, feasibility, durability,
implementability, and parties’ satisfaction. Processes can be evaluated for
their costs, fairness, and thoroughness. In addition to reaching agreement,
other outcomes include improved relationships, enhanced good will, and in-
creased social capital. Long-term assessments can be made on parties’ com-
pliance and ability to resolve future disputes, and on agreement implementa-
tion. Less prominent in these other domains than in ECR were concerns about
agreement “soundness” or public scrutiny, perhaps because agreements in
some other domains (e.g., community mediation, labor disputes) have less
broad implications for public welfare and public policy. However, these crite-
ria were voiced by ADR critics. Also less commonly mentioned was assess-
ment of parties’ new s ki lls and understanding. New themes found in this
broader review included criteria of social control, social justice, and parties’
personal transformation.

Across diverse fields, scholars have addressed various aspects of defining
and evaluating success in dispute resolution. While only a relatively small
subset of this effort has focused on environmental conflict resolution, com-
mon themes for evaluation begin to emerge across these domains. We see
common concern for identifying process and outcome criteria that expand
traditional definitions of success beyond simply agreement or participant sat-
isfaction. We see recognition of long-term as well as short-term criteria, and
system-level criteria as well as individual-level. Yet still lacking is the sys-
tematic review, organization, operationalization, and application of some or
all of these criteria to specific cases. Particularly those articles that have re-
viewed research in environmental dispute resolution conclude that such addi-
tional efforts are essential to further understanding of what constitutes suc-
cess, how it should be measured, and the use of evaluation in improving dis-
pute resolution.

The call for comparative analysis is clear. But through what sort of
framework? Comparative analysis, at least in its most systematic and reliable
form, is possible only if cases each report on similar dimensions. However,
most case analyses typically are done through the particular lens of their au-
thors, and thus few case reports have information on comparable variables. As
a first step toward true comparative analysis within the field, we have devel-
oped and tested a standardized and comprehensive list of criteria to be used
for reporting on case studies.

Chapter Two

CRITERIA FRAMEWORK

We utilized three main sources to identify useful criteria for evaluating
success in ECR: existing literature; interviews conducted with ECR practitio-
ners, parties to environmental conflicts, and researchers; and reasoning by
analogy from related fields where evaluation research has a longer history,
such as psychotherapy process and outcome research. Applying the criteria to
actual cases forced us to clarify and operationalize each criterion (see Appen-
dix A). Feedback from outside practitioners and researchers was garnered
through several public presentations of this framework, and criteria were
added and adjusted accordingly.

A significant issue considered in identifying criteria for effective ECR in-
tervention was whether the task was to identify (1) criteria that define success,
or (2) criteria that predict success. The former interpretation would be a case
of identifying ways of conceptualizing the “dependent variable” - that is,
what practitioners, conflicting parties, courts, and the larger society consider
to be an “effective resolution.” By contrast, the latter interpretation would be
a task of identifying those “independent variables” that significantly and re-
liably predicted, or correlated with, success. Examples of this latter category
include Bourdeaux, O’Leary, and Thornburgh’s 32 identification of the influ-
ence on success of participants’ control over process, communication oppor-
tunities, and presence ofkey stakeholders, and Lamb, Burkardt and Taylor’s 33
discovery that success is improved when the process is staged, with values
addressed before technical issues. Throughout our analysis, we struggled with
the specific variables’ positions in this causal equation. We chose to focus on
the first category and task, defining success, but acknowledge that many of
these criteria may be conceived by some as more appropriate for predicting
success, where success is defined yet another way.

CONCEPTUAL CATEGORIES

Through our extensive review, analyses and discussions, we recognized
the usefulness of putting the various criteria within a conceptual framework or
higher-order organization. Thus, we propose that criteria for success, and
hence definitions of success, fit into one of six conceptual categories: (1) Out-
come Reached, (2) Process Quality, (3) Outcome Quality, (4) Relationship of
Parties to Outcome, (5) Relationship Between Parties/Relationship Quality,
and (6) Social Capital (see Figure 2.1). Conceptual categories can be useful
tools for framing and considering further questions, such as: What does this
categorization tell us about underlying dimensions or assumptions about the
goals and practice of conflict resolution? Do categories suggest criteria that

Defining and Evaluating Success in Environmental Conflict Resolution

may be missing? We use this framework to organize our investigation into the
many criteria available for evaluating success.

Category One: Outcome Reached

The first category of criteria is Outcome Reached. The notion of reaching
a settlement or concluding an agreement as a measure of successful resolution
is fairly universal, and often implicit. For example, in their study of successful
community mediation, Pruitt, et al. 34 identify reaching an agreement to be
their first criterion of success. Bingham 35 analyzed 161 cases of mediated en-
vironmental disputes and found the parties’ objective in 132 of the 161 cases
was to reach an agreement. For Bingham, reaching agreement meant that ne-
gotiations resulted in a signed agreement, or that “the parties reported verbally
that they had reached an agreement and could describe its terms.” 36 In Bing-
ham’s analysis, both unanimity and ratification were required in order to
consider that an agreement had been reached. More recently, much discussion
has centered on the value of substituting consensus for unanimity as the deci-
sion rule (where a decision is accepted when all parties may not agree with,
but “can live with,” the result). Whether the decision rule is unanimity, con-
sensus, or some alternative, the associated criterion would be one of reaching
the goal of the chosen decision rule.

Mediation training will often focus on reaching an agreement as the goal
of mediation sessions. For example, Moore’s 37 classic training book defines
mediation as an intervention by a neutral third party “to assist disputing par-
ties in voluntarily reaching their own mutually acceptable settlement of issues
in dispute,” 38 and focuses mediators ultimately toward “achieving formal set-
tlement.” Mediators are taught to gear their efforts toward producing an
agreement that itself meets certain criteria (i.e., cost-efficiency, clarity, real-
ism, and ability to withstand public scrutiny for fairness).

Chapter Two

EFFECTIVE ENVIRONMENTAL CONFLICT RESOLUTION
CRITERIA CATEGORIES

I CRITERIA: OUTCOME REACHED

• Unanimity or Consensus

• Verifiable Terms

• Public Acknowledgement of Outcome

• Ratification

II. CRITERIA: PROCESS QUALITY

• Procedural^ Just

• Procedurally Accessible and Inclusive

• Reasonable Process Costs

III. CRITERIA: OUTCOME QUALITY

• Cost- Effective Implementation

. Perceived Economic Efficiency

• Financial Sustainability/Feasibility

• Cultural Sustainability/Community Self-determination

• Environmental Sustainability

• Clarity of Outcome

• Feasibility/Realism (legal, political, scientific/technical)

• Public Acceptability

• Efficient Problem-Solving

IV. CRITERIA: RELATIONSHIP OF PARTIES TO OUTCOME

• Outcome Satisfaction/Fairness as Assessed by Parties

• Compliance with Outcome Over Time

• Flexibility

• Stability/Durability

V. CRITERIA: RELATIONSHIP BETWEEN PARTIES (RELATIONSHIP QUALITY)

• Reduction in Conflict and Hostility

• Improved Relations/Trust

• Cognitive/Affective Shift

• Ability to Resolve Subsequent Disputes

• Transformation

VI. CRITERIA: SOCIAL CAPITAL

• Enhanced Citizen Capacity to Draw on Collective Potential Resources

• Increased Community Capacity for Environmental/Policy Decision-making

• Social System Transformation

Figure 2.1 : Criteria Categories

Defining and Evaluating Success in Environmental Conflict Resolution

Controversy exists concerning whether or not reaching an agreement
should be the primary criterion for success . 39 It is the quintessential example
of a short-term-focused criterion. Although an agreement may be necessary
for success, it may not be sufficient. An agreement may not last beyond the
ink drying before disagreements about implementation, new environmental
contingencies, or changes in the relationship between the parties render the
original Outcome impotent at directing parties’ future behaviors. By contrast,
others may argue that focusing beyond the Outcome ventures into a realm of
implementation that may be beyond the mandate and/or responsibility of cer-
tain conflict resolution processes (e.g., litigation). What may distinguish these
apparently competing perspectives is their focus on either immediate or long-
term criteria of success, as well as different conceptualizations of how con-
flicts are resolved. We will address this argument in later categories.

Category Two: Process Quality

The second criteria category is that of Process Quality. Once an Outcome
is reached, one of the first considerations in predicting its successful imple-
mentation, and in fact determining whether or not a successful Outcome actu-
ally has been concluded, is consideration of the process used to reach the Out-
come. Such considerations include those labeled “procedural justice,” encom-
passing the procedural components of the commonly cited criteria of “satis-
faction” and “fairness.” This body of work addresses parties’ satisfaction with
the process utilized to resolve the dispute, as well as the parties’ sense of the
fairness of the process utilized, including considerations such as consistency,
accuracy, and representation. Also included are concerns about inclusiveness
and the costs of the process.

Procedural Satisfaction and Fairness

Although the terms procedural satisfaction and procedural fairness can

be measured separately and can be argued to be different concepts, for the
most part researchers have combined these concepts. Though some research-
ers 40 believe the terms carry different connotations, these same researchers do
not find any empirical evidence to support the contention that respondents
draw any such distinctions. In fact, factor analyses conducted by Lind and
Tyler 41 show that items asking about satisfaction, fairness, and the propriety
of a procedure, and trust in the procedure all load onto the same factor.

Lind and Tyler 42 do, however, appear to draw some distinctions between
the variable procedural fairness and procedural justice. Measures of proce-
dural fairness ask direct questions about the fairness of a specified procedure ,
whereas measures of procedural justice ask questions about features of a pro-

Chapter Two

cedure (i.e., does decision-maker consider all sides before making decisions,
does decision-maker take enough time to consider policy decisions, etc.).

Various researchers break down the criterion of procedural fairness into
components. The following seven procedural elements have been outlined by
various researchers : 43 consistency, decision control (control over final deci-
sion), process control (control over presentation of evidence before decision is
made), neutrality (honest and lack of bias), competence (making factual deci-
sions), politeness, and respect for rights.

Different elements of procedural justice have been explored in greater de-
tail. Researchers have also found that the meaning of justice varies depending
on the nature of the dispute or allocation involved. In formal settings, empha-
sis is placed on bias suppression, decision quality, consistency and representa-
tion. On the other hand, in cooperative situations, focus is placed on consis-
tency, decision quality, and ethicality . 44 Roehl 45 designed a measure of proce-
dural justice in the context of mediation and court procedures. Her scaling
process found subscales for presenting evidence, coercion, third party fair-
ness, time/cost, clarity of rules, overall fairness, and respect for the disputants.
In a laboratory setting, she found that although the outcome of hearings were
identical in fair and unfair hearings, outcomes were perceived as unfair when
the process was unfair.

Reasonable Process Costs

Questions about the cost of a conflict resolution process are often raised.
Raab 46 suggests “process-related resource savings” as one criterion to exam-
ine whether some dispute resolution processes are less expensive in terms of
time, money, and other resources, as compared to a baseline case of litigating
the dispute. Examination of costs encompasses both long- and short-term as-
pects. Short-term considerations include up-front benefits and costs to dispu-
tants, and benefits and costs to others who are not direct participants - such as
taxpayers, the environment, resource users not at the table, and the “public
interest.” Long-term cumulative costs are considered under Outcome Quality
and relate to the stability and flexibility of the Outcome, the frequency with
which the parties need to revisit its provisions and negotiate adjustments, and
the effectiveness of the initial process in building capacity among the parties
to resolve future related disputes . 47

While there is a general sense that ADR processes are less costly than
litigation very little discussion exists regarding what types of costs and
whose costs need to be considered (i.e., taxpayer and “public” costs in addi-
tion to costs borne by disputants themselves). Better understanding of the
costs of ADR processes can help us more systematically compare different
ways of resolving disputes. Moreover, private firms and public agencies ac-
customed to taking a litigation approach to disputes want to know whether

Defining and Evaluating Success in Environmental Conflict Resolution

to taking a litigation approach to disputes want to know whether there are real
economic advantages to ADR processes . 49

Little empirical evidence is available beyond perceptional evidence to
document actual cost differences. Alternative dispute resolution may not be
less expensive in terms of up-front costs as both litigation and mediated nego-
tiations require information to be gathered on the environmental issues, the
parties’ needs, and on potential solutions. Moreover, in many cases the parties
simultaneously prepare for litigation and negotiations, or litigation is ongoing
concurrent with alternative dispute resolution. The case for cost savings in
ADR processes may lie in comparing long-term cumulative costs over multi-
ple stages of dispute resolution, implementing Outcomes, and revising Out-
comes as conditions change.

One characteristic of a cost-effective process is development of a shared
information base regarding the resource. The process must provide incentives
for the best technical and scientific information to be made available for use
by the parties. Information sharing among the disputants implies that some
trust among the parties has been established. When disputes are settled in liti-
gation, technical expertise and information is used as a weapon with which to
defend one’s interests and there is little incentive to seek out objective data
and to build a common understanding of technical matters that can lead to
better management of the resource. Consequently, voluntary negotiations may
be likely to lead to better and lower cost access to information.

Category Three: Outcome Quality

The third criteria category is that of Outcome Quality. Beyond the simple
fact of reaching an Outcome, “success” usually incorporates evaluation of
aspects of the Outcome itself. Presumably, an Outcome can be evaluated by a
neutral outside party, or society, on the basis of certain criteria, regardless of
the relationship of the principal parties to that Outcome. These are often short-
term criteria. Criteria that fall into this category include cost-effective imple-
mentation, perceived economic efficiency, financial feasibility/sustainability,
cultural and environmental sustainability, outcome clarity, and feasibility (le-
gal, political, and scientific/technical).

Cost-Effective Implementation

Implementation costs include monitoring (e.g., metering water use, evalu-
ating species restoration), enforcement (e.g., penalties included in Outcome),
and responding to new conditions (e.g., drought, more scientific knowledge
about a river system, species, needs). These costs should be considered up
front in order to craft an Outcome that gives the parties incentives to comply

34 Chapter Two

(thus reducing monitoring and enforcement costs) and that specifies a process
for dealing with the unexpected.

It would be useful to learn more about how process costs (above) and im-
plementation costs interact. If the parties spend more early on, take their time
and don’t rush to resolution, does this reduce implementation costs and dis-
pute recurrence? The cumulative expenses are a key issue as complex policy
disputes can involve hundreds of millions of dollars in land, water, lost in-
come, technical studies, regulatory costs, and legal fees.

Perceived Economic Efficiency

Perceived economic efficiency asks whether the dispute resolution out-
come is viewed as creating net benefits (“net benefits” are benefits minus
costs) that would not have been available otherwise. In order to rigorously
assess economic efficiency for the outcome of an environmental conflict, it
would be necessary to describe all of the relevant costs and benefits and to
quantify them in dollars. However, less formally, economic efficiency asks
“was it worthwhile?” “Are the costs justified by the benefits?” This concept
of weighing benefits and costs is central to the “mutual gains” negotiation
framework described in Getting To Yes 50 and applied to environmental and
public policy disputes in Susskind’s work. 51 It is sometimes called “creating
value” or converting zero sum negotiations to positive sum negotiations.

Outcomes which are voluntary agreements are likely to satisfy this crite-
rion for the direct parties to the agreement. If the agreement fails to provide
improvements for those who sign on, compared to their available alternatives
to the agreement (BATNAs 52 ), they would decline to bind themselves to the
agreement. Litigated outcomes, and other outcomes that do not involve volun-
tary consent of the parties, are unlikely to satisfy this criterion for the imme-
diate parties. However, they still may be perceived as producing net benefits
for society as a whole. Net benefits may arise from avoiding the costs of pro-
longed litigation, from improved natural resource management, from cleaner
air or water, and from better sharing of information and technology among the
parties. Many analytic challenges arise in documenting and quantifying the
various types of benefits and costs that arise from resolving a dispute, thus
perceptions regarding benefits and costs are more often assessed. As noted
earlier, O’Leary and Husar’s 53 survey of environmental and natural resource
attorneys found that several benefits to ADR-produced Outcomes were per-
ceived, including fairer cost allocation, mutually beneficial solutions, and the
resolution of difficult technical issues.

Defining and Evaluating Success in Environmental Conflict Resolution 35

Sustainability

Sustainability implies practices that allow for preservation of current re-
sources in such a way that future generations will have comparable resources
available to them. We have investigated three criteria of Sustainability: envi-
ronmental Sustainability, given the natural resources involved in the Outcome.
cultural Sustainability/community self-determination, given the “cultures” and
lifestyles impacted by the Outcome, and financial Sustainability/feasibility,
considering the distribution of costs and benefits over time. The Sustainability
criteria apply here to allocation and management arrangements that are pro-
duced by a dispute resolution process, e.g., the outcomes of the process. Char-
acteristics of the process itself that may contribute to the long-term durability
of the arrangements are discussed above under stability.

Environmental Sustainability

An outcome that is environmentally sustainable needs to carefully con-
sider how the resource central to the dispute will be used and managed, and
also must consider other linked resources. In the case of water conflicts, other
resources might include fish, wildlife, hydropower, other forms of energy as-
sociated with water use and conveyance, and alternative land uses related to
water allocations. Those concerned with population growth would add that
Sustainability criteria should include the degree to which an outcome contrib-
utes more water for urban development and thus contributes to associated
problems such as congestion, reduced open space, increased urban encroach-
ment into wildlife habitat, and poorer air quality. Others argue that a certain
level of growth must be taken for granted and that the evaluation of negotiated
outcomes should not focus on problems associated with growth but rather on
the most sustainable ways to accommodate the growth that is inevitable.

With regard to water resources, sustainable allocation and management ar-
rangements must consider drought and flood cycles and specify how water
will be shared in dry years when there is not enough to meet the competing
demands that are accommodated in normal years. This implies that negotiated
agreements need to carefully spell out how the risks of shortages are to be
distributed among water uses and to specify mechanisms for meeting essential
water needs under unusual circumstances such as a prolonged drought.

Cultural Sustainability

Cultural Sustainability considers the effects of an Outcome on affected
communities. These include demographic and economic effects, such as
changes in patterns of jobs, income, taxes, etc. Negotiated agreements or other
Outcomes may also result in changes in patterns of ownership, changes in

Chapter Two

decision-making authority or jurisdiction, and changes in the social or cultural
“lifeways” of the affected communities or the relative balance of these life-
ways (the “cultural mix”). Examples of “lifeways” include irrigated fanning,
ranching, community gardens, Native American cultural practices, Hispanic
ditch associations (acequias), small town life. Concerns about communities
are often raised during times of potential change.

This criterion includes concerns over community self-determination and
sovereignty. Bargaining processes and Outcomes can shift control and power
among the parties. Tribal sovereignty issues are a classic example of this con-
cern. Other examples involve the ability of local communities to control their
future by influencing management of the public lands and water supplies that
affect their livelihoods and the quality of their environment. Negotiated Out-
comes need to consider who has the power and the voice to make or to influ-
ence choices, as authorized by the Outcome, versus who will bear the conse-
quence of those choices. This is likely to be linked to perceived fairness. A
match between a party’s influence over a decision and that party bearing the
consequences of that decision is more likely to be regarded as fair than a
mismatch between decision power and bearing consequences. For instance,
when a federal agency decision in Washington, DC, causes closure of timber
operations in rural Oregon, part of the local outrage stems from having no
voice in a decision that affects jobs and livelihoods in their community.

Concern with local self-determination is at the heart of much of the dissat-
isfaction with federal land and water management in the West. Components
of community self-determination that may be affected by some Outcomes
(such as legal rulings) include: (T) jurisdiction (which level of government has
the legal authority to make decisions concerning water allocation and man-
agement); (2) ownership (who holds title to the resources and has secure ac-
cess to their continued use); and (3) control over economic future (who influ-
ences the puiposes for which resources are available, the types of jobs gener-
ated, and economic stability and vitality oflocal communities).

Financial Sustainability/F easibility

Economic or financial sustainability considers the ability of the parties,
including federal taxpayers, to bear costs arising from the Outcome over time.
Outcomes sometimes defer tough questions such as whether or not the parties
actually have the financial ability to pay for new water supply development or
for construction of additional power plants to provide electricity to move wa-
ter to new locations. In order to reach agreement, costs may be postponed
through loans and creative financing arrangements for a decade or more into
the future and the impact of these future repayment obligations is not realisti-
cally considered when the Outcome is negotiated. This deferral of realistically
assessing parties’ ability to pay is a concern in a number of settlements of

Defining and Evaluating Success in Environmental Conflict Resolution

tribal water claims in which new supplies are to be developed. Often the brunt
of the costs is borne by the federal government and non-Indian water users,
but tribes also obligate themselves to pay millions of dollars per year in water
delivery costs and on-reservation infrastructure development without adequate
revenue stream to cover these obligations. Evaluation of financial sustainabil-
ity entails assessing the ability and willingness of those who will bear the
costs in the future to meet their financial obligations.

Clarity and Feasibility

Other criteria applied to the Outcome itself include clarity and feasibil-
ity/realism. In addition to cost-efficiency, Moore 54 includes clarity, realism,
and ability to withstand public scrutiny for fairness in his criteria for success-
ful agreement. In their mediation study, Pruitt, et al . 55 operationalized their
measurement of the “soundness of an agreement” as its rating of clarity and
feasibility as assessed by coders.

In addition to political feasibility, Outcomes must conform to existing law
(legal feasibility) or involve changing it. They must also be based on scientific
and technical assumptions that are considered sound (scientific/technical fea-
sibility).

Many of these criteria of Outcome quality can be evaluated immediately
upon conclusion of an Outcome, at least in a predictive sense, and thus consti-
tute short-term criteria of success. However, because the Outcome is imple-
mented in a context that is dynamic and changing, these criteria can and
should also be examined as long-term criteria. For example, as the environ-
mental context changes, an Outcome dubbed initially as sustainable may turn
out to be untenable under new resource realities. An Outcome judged as fi-
nancially feasible under certain economic conditions may no longer be cost
effective or successful if economic conditions change significantly. Thus, al-
though criteria of Outcome quality are assessable in a short-term time frame
(as opposed to other criteria discussed below that can only be assessed over
time), such assessments should be considered as having low reliability (in a
methodological sense), given their probabilistic nature. These criteria should
be reassessed in a long-term frame as well.

Public Acceptability

The quality of the outcome may be judged by the general public. Dispu-
tants, or the general public, may deem that certain disputes are best addressed
in a public forum (see Moore’s 56 private-public continuum of processes), or at
least that certain Outcomes should be subjected to “public scrutiny.” In fact,
conflict resolution processes occurring in public, do so in part because they
are assumed to be addressing larger public issues. One of the common criti-

Chapter Two

cisms of ADR leveled by advocates of more traditional legal processes is that
public scrutiny, either by the general public or by someone the public has
vested with such powers, is compromised . 57 However, clear methods for as-
sessing public acceptability have not been well articulated.

Efficient Problem-Solving

Negotiation theory suggests that efficiencies can be created when the con-
flict resolution process allows for collaborative problem-solving. If parties
can work together, they can recognize opportunities for mutual gain, and col-
laborate to “expand the pie.” Exchanges can be made that benefit everyone
without anyone losing anything (“elegant trades” 58 ). An efficient agreement
is one where parties have not missed opportunities for “elegant trades ,” 59 and
where parties have “created value” by problem-solving together.

Category Four: Relationship of Parties to Outcome

The fourth criteria category is that of the Relationship of Parties to Out-
come. In addition to a neutral, objective evaluation of the Outcome itself, an
important measure of resolution success includes how the parties feel about
and behave toward the solution. Some argue that in fact this is the primary
measurement of success. Are the parties themselves satisfied with the Out-
come reached, regardless of outsiders’ assessments of the Outcome? Do they
feel that terms of the Outcome are “fair” and represent “justice”? Will the par-
ties abide by the Outcome reached? This category of criteria contains both
criteria that can be immediately assessed upon reaching an Outcome as well
as criteria that can only be assessed over time, in the longer term. Criteria dis-
cussed in this category include: outcome satisfaction and perceived fairness,
economic components of perceived fairness, compliance, flexibility, and
stability/durability.

Outcome Satisfaction/Fairness

In the short term, one can assess parties’ sense of satisfaction with and
fairness of the Outcome. As with procedural fairness and satisfaction dis-
cussed above, Lind and Tyler 60 found that items asking about satisfaction with
outcomes, fairness of outcomes, and the extent to which outcomes reflect the
true situation, all loaded strongly on one factor they called distributive fair-
ness.

Such distributive fairness or ‘distributive justice’ can be assessed in sev-
eral ways. Pruitt, et al . 61 asked mediation participants to rate their satisfaction
level immediately after mediation on a scale from very dissatisfied to very
satisfied. Tyler and Griffin 62 found differences in distributive justice princi-

Defining and Evaluating Success in Environmental Conflict Resolution

pies used in different settings. In short-term instrumental exchanges among
strangers, where effectiveness is a more important goal than positive interper-
sonal relations, equity is typically the predominate distributive justice princi-
ple. In exchange relationships among friends and long-term relationships,
where maintaining positive interpersonal relations is as important as short-
term effectiveness, equality is more important.

Disputants have different beliefs regarding their baseline entitlements and
their “fair share” of the costs of resolving the problem being disputed. These
“baselines” determine their perceptions of the fairness of a particular outcome
and their internal starting point in negotiations. In environmental disputes,
often there are key disagreements about the baseline rights and the validity of
each party’s starting point. Power contests such as litigation, media or public
opinion wars, and political power battles frequently are used to convince other
parties that their starting points (their baseline assumptions about their rights)
are weak.

Many different types of baseline entitlements are invoked in negotiating
over rights to use water, including equity, geography, historic water use, or
need. In general, each party will select an approach to define its baseline that
results in the biggest claim on the disputed resource. There are no objective
criteria for choosing among the different baseline positions in multi-party
bargaining as each baseline can be justified from the particular perspective of
the party advocating that baseline. Rights-based claims lead to legal wran-
gling and development of competing legal positions, while needs-based
claims generate differing assessments of the parties’ “legitimate” environ-
mental needs and also incite behaviors that amplify needs-based claims, such
as high population growth and development of new uses for environmental
resources.

Fairness may be perceived partly as reciprocity - in terms of what I give
up versus what you give up. However, recognition of reciprocity also depends
on the parties’ internal baselines. To use an example of water disputes again,
agricultural interests may receive no “credit” from environmentalists for im-
plementing new conservation practices if environmentalists take a view that
farmers historically “wasted water.”

Another component of fairness involves allocating dispute-related costs. In
policy disputes. Outcomes can involve new infrastructure, revised regulations,
and other elements with large price tags. The distribution of these costs
among the parties (and taxpayers) often is a key factor in the overall context
of the dispute resolution process. To what extent should differing financial
capabilities play a role in allocating costs? For instance, should both wealthy
and poorer disputants bear equal shares of the costs of obtaining additional
water to resolve their conflict? Should differences in historic access to and
benefits from the disputed resource affect how benefits are distributed under
the new Outcome? If shares of past damage to the resource can be attributed

40 Chapter Two

among the parties (relative pollutant loads, for instance), how should this af-
fect apportioning of costs?

As noted above, perceptions of outcome fairness and satisfaction also are
linked to perceptions of process fairness. Analysis of the fairness of a specific
dispute outcome involving changes in resource allocation must focus on both
the process employed and the outcome achieved. Voluntary negotiations in
which all disputants have a voice and the parties build up trust in one an-
other’s integrity and ability to abide by Outcomes may be more likely to be
perceived as fair than solutions imposed by courts and bureaucrats.

Compliance

Some criteria involving the relationship between the parties and the Out-
come can only be assessed over time. Probably the most common indicator of
long-term success we have reviewed is compliance. Compliance is often as-
sessed as present or absent, and often through self-report, as in “have you fol-
lowed all the terms of your agreement?” 63 or with a scale running “no viola-
tion” to “major violation.” 64 Compliance may be assessed after as short a pe-
riod as four months 65 or after several months or even years.

Another common measure of compliance is relitigation, i.e., these parties
returning to court on an issue related to this dispute or to dispute the terms of
their agreement. Quite a large literature exists using relitigation rates as meas-
urements of successful resolution in divorce mediation. 66 The literature is
mixed on the virtues of litigation versus ADR in reducing relitigation. How-
ever, one potentially serious confound in the way both non-compliance and
relitigation are measured is that they both typically encompass cases where
parties have a further dispute but also cases where parties have returned to
court to make official some mutually agreed upon alteration to the original
agreement. Thus “flexibility” may be coded as “noncompliance.”

Flexibility

In much of this same literature, flexibility is seen to be a positive meas-
urement of success, and in fact linked to durability. An Outcome is flexible if
parties feel they can modify their Outcome in a mutually agreeable way as
circumstances change. In fact, divorce mediators often encourage parents to
return to court to modify agreements in light of new circumstances, explain-
ing what may look like higher relitigation rates among mediation samples
over litigation samples. 67 Flexibility, whether formally documented with the
court or informally agreed to between the parties, is positive in that it is a
measure of the parties’ ability to resolve new issues on their own.

Defining and Evaluating Success in Environmental Conflict Resolution

Stability/Durability

The stability of an Outcome can only be assessed as implementation of an
Outcome proceeds and the parties face new challenges that test the strength of
the original agreement. However, it is possible to consider the factors that
contribute to stability, as an Outcome is being formulated, so that appropriate
adjustments to enhance stability can be built in during negotiations. Features
to enhance stability include incentives built into the Outcome to reinforce the
parties’ commitment to its provisions, such as penalties for non-compliance.

Other types of incentives to enhance stability include carefully staging the
satisfaction of each party’s key needs over the course of implementation. So
long as each of the parties still needs something essential to fulfill their inter-
ests from the Outcome, they have an incentive to uphold the Outcome in the
face of internal and external challenges. If one of the parties has all of their
needs satisfied early on, they have little reason to contribute political and eco-
nomic influence if the Outcome later is in jeopardy.

Stable Outcomes need to withstand new environmental constraints and
changing values, to be able to adapt to unexpected events such as droughts,
floods, or new court rulings. One way to provide this adaptability is through
specifying in the Outcome a process for negotiating modifications as needed
(see “flexibility” above). Such a provision needs to address who sits at the
table when modifications are discussed, the power of the various parties to
influence modifications (including veto power), and principles for sharing the
costs of adopting new water management and water allocation strategies. For
Outcomes that will require years to fully implement, some mutually agreeable
ongoing forum is essential to enhance stability.

The quality of the relationships that evolve among disputants over the
course of the conflict also affects stability. Development of mutual assurance,
reciprocity in “give and take” and trust that other disputants will not use their
influence to undermine implementation of the Outcome all contribute to sta-
bility. 68

Meierding 69 defines stability or durability as short- and long-term compli-
ance with agreements. Pointing to studies that indicate that in divorce media-
tion, one-third of successfully negotiated agreements are no longer working
within a year, Saposnek defines success in conciliation in terms of “workable,
written agreements that hold up over time.” 70 After Davis and Roberts (1988)
found that 42% of agreements in their family conciliation sample had broken
down within 18 months, they comment that it “is somewhat artificial to assess
the impact of mediation simply in terms of the durability of an access agree-
ment arrived at in the course of one negotiating session. A better measure
would be to try and assess whether... these parents are better equipped to ne-
gotiate together.” 71 Unless the relationship has changed to allow for further
conflict resolution, quality Outcomes may not be adequate.

42 Chapter Two

Category Five: Relationship Between Parties (Relationship
Quality)

The fifth criteria category is that of the Relationship between Parties (or
Relationship Quality). In addition to assessing compliance with the Outcome,
most discussions of success include some indicator of the quality of the rela-
tionship between the parties. The ECR practitioners we interviewed in par-
ticular felt this category of criteria to be important, as did evaluation research
in other social interventions such as psychotherapy. 72 Various methods are
outlined, including direct measurements of relationship quality, ability to re-
solve future disputes, reduction in conflict and hostility, cognitive/affective
shift, and transformation. These criteria are usually assessed over time, and in
the long term.

General Relationship Quality

Pruitt, et al. 73 assessed improvement in long-term quality of the relation-
ship directly with two scales: current relationship with the other party (very
unpleasant to very pleasant) and a measure of whether the relationship wors-
ened, remained the same, or improved. They also coded for any development
of new problems. They found that problem-solving training contributed to
improved relations between the parties. As has been shown in marital therapy,
this result suggests a critical role of rehearsal in problem-solving in conflict
resolution sessions. Long-term relations between distressed couples in marital
therapy improve with problem-solving training. Complex skills, including
problem-solving skills, only improve with practice.

The criterion of improved relations seeks to capture changes in the way
parties see and relate to one another. To note change, one must first note the
nature of the original relationship as a baseline for comparison. In addition to
rating the relationship, changes can be noted in how the relationship is dis-
cussed, the tone of communication used (hostile, conciliatory), the effort par-
ties expend to protect themselves, and their sense of trust.

Ability to Resolve Future Disputes

Another relationship quality criterion is the ability of parties to resolve
inevitable future disputes. As discussed above, a good measure of success
would be parties ability to negotiate together in the future. 74 In their study of
relitigation, Keilitz, et al. 75 point to the importance of parties’ ability to main-
tain amicable and cooperative relationships, an ability they say is unlikely to
be permanently improved by only a limited time in mediation. Changes in
entrenched patterns of relating take time, a willingness and desire to change,
and practice.

Defining and Evaluating Success in Environmental Conflict Resolution 43

Reduction in Conflict and Hostility

Johnston, et al. 76 considered reduction in conflict and hostility to be an
indicator of success in their studies of conflictual couples. The researchers
measured conflict using the Straus Conflict Tactics Scale, 77 which is com-
prised of 18 behavioral questions on how disagreements have been managed
during the previous year. Other mediation studies 78 measured reductions in
hostility using scales such as the O’Leary-Porter Scale (OPS) on which par-
ents self-report the frequency of hostility displayed in front of a child. Al-
though these measures have been developed primarily for use in marital and
family conflict, analog measures could be developed for other domains. In
fact, in studies of international conflict, one of the primary indicators of suc-
cessful “resolution” is an end or reduction in overt hostilities. 79 Gwartney,
Fessenden, and Landt 80 applied this idea in their study using the New Com-
munity Meeting (NCM) model to evaluate how participants related to each
other over the course of the NCM process.

Cognitive and Affective Shift

Interviews with both local and regional ECR practitioners produced re-
peated references to a “shifting” in the way parties saw each other as a result
of an effective process, in essence a “cognitive shift .” 81 Although this indica-
tor of successful resolution was commonly noted by practitioners, both within
the environmental domain and outside, little research has been done on it di-
rectly within conflict resolution research. 82 Other areas of research, however,
have sought to capture or measure such changes or shifts in relationships.
Primary among these is psychotherapy research.

Authors in the therapy literature that discuss “cognitive shifts” fall into
three basic theoretical camps: behavioral, cognitive, and family systems. The
first school, the behaviorists, sees cognitive shift in terms of acceptance.
Change refers to compromising with and accommodating to a partner,
whereas the authors argue ‘acceptance’ refers to a letting go of the struggle to
change and in some cases embracing those aspects of the partner which have
traditionally been precipitant of conflict. Previously offensive behaviors, in-
cluding the partner’s pursuit of his or her own interests, are accepted; the
value of accepting the partner’ s point of view is underscored.

In this first school, the third party practitioner (in this case, the therapist)
fosters such a shift with four types of intervention, some of which parallel
common mediation interventions. First, the therapist listens and rephrases the
problem without the blame and accusation that usually surrounds problems.
This intervention is generally referred to as reframing. Second, the therapist
promotes a style of communication that involves having the parties learn to
discuss the problem as an “it,” a common enemy rather than something that

Chapter Two

one does to the other, or as a problem to be solved. Third, the therapist at-
tempts to increase each person’s tolerance of the other’s negative behavior.
Methods for shifting a person’s view of the other’s problem behavior include
pointing out the positive features of the negative behavior. Fourth, the thera-
pist encourages each party to become less dependent on the other, and there-
fore more accepting of their partner’s imperfections. With more independ-
ence, the other’s imperfections are less critical and the focus shifts from other
to self. The actual occurrence of a cognitive shift is assessed through an inter-
view procedure, where changes in feelings are noted.

The second school of therapy that explicitly aims for cognitive shifts as a
goal is the cognitive -behavioral school. These cognitive theorists speak di-
rectly about the concept of cognitive shifts. They also criticize the behavior-
ists, above, believing that “acceptance” as a goal is too vague and suggests
lack of change . 83 They argue that the goal is a balance of changes in cogni-
tion, behavior, and affect. Conflict is in part the result of information process-
ing errors. Cognitive variables commonly causing conflict among parties that
thus need to shift are in five areas: selective attention, attributions, expectan-
cies, assumptions, and standards.

Specific interventions have been designed to modify cognitions in each of
these five areas of conflict . 84 For example, some parties may selectively at-
tend to the negative aspects of the other parties and/or the relationship. An
intervention goal would be to shift attention to a more representative balance
of both positive and negative aspects of the other parties or relationship. An
intervenor can use specific interventions in each of the five areas described
above to achieve cognitive shift. Shifts are assessed through self-report ques-
tionnaires, interviews, and scoring of observational data taken during conflict
resolution sessions.

Finally, the family systems school suggests that in families, organizations,
and communities, shared narrative stories evolve that define “reality” within a
given group. The presence of one narrative reality effectively excludes certain
other interpretations of reality. The goal of this therapeutic approach is to fa-
cilitate or promote change in specific stories or the relationship between sto-
ries, thus changing the parties’ experience of the existing reality.

Sluzki 85 actually bases what he calls a “transformative process” in therapy
in part on earlier work on mediation. Interventions are designed through ad-
dressing various dimensions of the story and attempting shifts in specific
ones. Dimensions for shifts include time, space, causality, interactions, val-
ues, and telling-style .* 6 For example, if a story is ahistoric in content, the in-
tervenor might request a history of the characters to provide an avenue for
change by setting the story in context. Cognitive shifts are assessed through
the therapist noting shifts on these dimensions of the stories told.

Finally, it may be more accurate to conceive of these shifts as both affec-
tive and cognitive, that is, not only do parties change their stored representa-

Defining and Evaluating Success in Environmental Conflict Resolution

tion of the others’ characteristics and behaviors, but also change their basic
evaluation or emotion associated with the other from more negative to more
positive. As such, changes should be able to be noted not only in how the
other is conceived, but also in how the other is evaluated. The therapeutic ap-
proaches discussed above all explicitly or implicitly note such changes as part
of “cognitive shifts.”

Transformation

Fundamental changes in how one thinks and feels about another are typi-
cally irrevocable, i.e., once a new explanation for another’s behavior is under-
stood, the old ways of explaining and perceiving become useless and are dis-
carded. Such changes have the feel of changes in physical states, where matter
takes on new appearance and new form. A criterion for success that currently
is broadly discussed throughout the conflict resolution field is the notion of
“transformation .” 87

Some argue that conflict presents an opportunity for individual and collec-
tive moral growth . 88 More specifically, this moral growth is toward a social
vision that integrates individual freedom and social conscience, and integrates
concerns over justice and rights with concerns about care and relationships . 89
This moral growth can occur if conflict resolution processes help people to
change their old ways of operating and to achieve new understanding and new
relationships through conflict. Others argue that transformation occurs at the
level of social institutions and social relations . 90

Transformation may appear as the parties’ renewed sense of their own ca-
pacity to handle challenges, as empathy for and acknowledgement of the oth-
ers’ circumstances , 91 and as evidence of other major shifts in perception be-
yond just shifts in perceptions of the other, e.g., of relationship context, of
paradigm, of social and political context, of “the problem” or of tools and so-
lutions. Though transformation has only recently begun to be researched em-
pirically, results suggest parties recognize its benefits, and mediators can be
trained to work with third parties in this direction . 92

Category Six: Social Capital

Though not in our original framework, the sixth and final criterion cate-
gory was added after numerous discussions with researchers and practitioners.
We distinguish this criterion category from others in that this criterion cate-
gory includes criteria that address positive changes that occur in the larger
system in which this conflict is embedded: changes that go beyond the rela-
tionships between these particular stakeholders and/or beyond the particular
issues in this conflict. These changes are grouped loosely together as Social
Capital.

Chapter Two

Social capital, like other forms of capital, is a potential resource that must
be drawn upon to realize its value. It is the capacity for individuals to com-
mand resources that comes from having social connections. However, social
capital does not inhere in individuals; rather, it is a characteristic or posses-
sion of relationships and communities . 93 It has been defined as potential assis-
tance relationships between people , 94 “generalized reciprocity ,” 95 the capacity
for individuals to command scarce resources by virtue of their membership in
networks or broader social structures , 96 the aggregate of these actual or poten-
tial resources linked to a durable network , 97 or even the capability for trusting
strangers . 98 In Innes ’ 99 discussion of consensus-building, reviewed above, she
identifies the importance of a system’s (i.e., a community’s) increased capac-
ity for responding that comes from cooperation and coordination. Allen’s 100
work on community conflict resolution considers social capital as stemming
from the transformation of social interaction to collective action. This occurs
through increased acquaintance and personal knowledge, as trust and recip-
rocity develop between individuals and organizations. Gwartney, Fessenden,
and Landt 101 note evidence of collaborating in new ways that benefit the lar-
ger community.

Of the many ways that social capital has been operationalized in theory
and research and has been predicted to appear, three themes appear that could
be considered as criteria. The first, enhanced citizen capacity to draw on
collective potential resources, builds on group members’ ability to rely on
potential assistance from others in their network. Processes that build relation-
ships and weave networks among people increase their collective potential
resources. The increased potential for assistance and greater collective re-
sources allows for greater risk-taking and creativity. Fukuyama 102 argued that
such ‘trust,’ even among strangers, allows for people to spontaneously work
together for common purposes.

Innes 103 argued that the most important result of a consensus-building
process may not be an agreement per se, but the increased ability for a com-
munity to handle future challenges. Two additional criteria speak to this new
ability for responding. First is the increased capacity of the community for
environmental and public policy decision-making. Many practitioners have
argued that the true test of success is whether or not parties can translate their
new way of resolving conflict to new issues, new relationships, and new do-
mains . 104 New skills learned and new patterns of behavior provide an in-
creased capacity in the community for cooperation. As a result, activities are
better coordinated and duplication of efforts is reduced. Information is shared
rather than hoarded, and in fact information gathering becomes a joint activ-
ity. As a system, the community is more efficient, and it is more able to act
proactively rather than reactively to new challenges.

Finally, successful conflict resolution produces a community that has truly
evolved into an integrated, adaptive, learning system - one that has undergone

Defining and Evaluating Success in Environmental Conflict Resolution

social system transformation. The community’s or system’s integration re-
sults in coordinated responses to new crises and challenges. The system is
more resilient . 105 The positive changes produced through the conflict resolu-
tion process create the capacity for continued learning and improved action , 106
and fosters “double-loop learning ’’ 107 where ways of problem- framing are
themselves reexamined, and creative new responses are considered. Percep-
tions of responsibility shift to encompass the entire community system.

As one assesses increases in social capital, it is important also to assess the
presence of the two types of conditions that foster its formation and use: net-
works and perceptions. While networks include such “horizontal associations”
as volunteer groups, community associations, and social clubs, other networks
that are vital to social capital are communication channels between diverse
groups and community residential stability. Perceptual conditions fostering
social capital include the perception that one has relationships based on mu-
tual reciprocity and assistance, that one is interdependent with others in the
community, and that one can trust the community’s members and institutions.
While these networks and perceptions form a foundation for the development
and strengthening of social capital, they, in turn, are further strengthened as
social capital is used. Networks and positive perceptions are reinforced as
those relationships are drawn upon for mutual assistance, engendering still
more social capital.

Across multiple literatures, and through feedback from many practitioners
and scholars, we have assembled a comprehensive list of ways to conceive of
“success” in environmental conflict resolution. Our organization into concep-
tual categories provides a structure for thinking about the varying goals con-
tained within conflict resolution processes. Rather than providing simple an-
swers to evaluation questions, systematic consideration of the criteria for suc-
cess raises further important issues. We turn to these issues now.

DISCUSSION

Defining Success

Our examination of the many possible criteria for success highlights that
there are inherent tradeoffs in working for “successful” environmental conflict
resolution. Increasing stability of an Outcome may reduce flexibility. Increas-
ing the inclusiveness of the process may reduce the likelihood of unanimity or
consensus. Environmental and cultural sustainability may be at odds. There-
fore, it is not possible to simply develop a “scorecard” or “report card” that
checks for high performance on all criteria. Ultimately, criteria must be se-

Chapter Two

lected and prioritized, a task that requires the application of values. This task
moves from the realm of science or research into the realm of policy, where
the community values are articulated, negotiated, integrated, and applied.
Once criteria are chosen and prioritized, assessments can be made on the mer-
its of a given conflict resolution process, always keeping in mind that the as-
sessment is ultimately linked to questions of value.

A Framework for Ongoing and Future Work

Before engaging in comparative analysis, one must have a common
framework: a ‘yardstick’ to allow for comparison on the same dimension. One
of the main goals of this chapter was not only to explore the varying criteria
for success that researchers and practitioners discuss and utilize, but also to
develop a framework that would allow for comparative analysis. The articula-
tion and organization of criteria begins this process; the criteria are further
developed and operationalized in Appendix A’s Guidebook. The following
chapter will discuss the application of this framework to cases for both indi-
vidual case analysis and comparative work - tasks demonstrated in subse-
quent chapters.

We advance this framework with hopes that future case studies also will
use this framework to be thorough in their case reporting, so that future com-
parisons can continue to be made across cases using a consistent set of vari-
ables. Such standardization of a reporting framework will allow researchers to
begin accumulating information about successful practices across cases. In
addition, it will allow for more thorough, systematic, and unbiased compari-
sons of different conflict resolution methods, such as we begin to do in Chap-
ter 8. Many have begun to argue, in both environmental conflict resolution
and in other conflict resolution domains 108 for contingency planning: for the
thoughtful selection of methods appropriate to a given conflict context.
Knowing more about the differing strengths and weaknesses of various meth-
ods can go far toward eliminating the zero-sum, competitive approach that
often exists between, for example, advocates of litigation, legislation, and ne-
gotiation. Such knowledge also will serve the best interests of those whose
lives are most affected: those who struggle with how best to resolve their dis-
putes.

Defining and Evaluating Success in Environmental Conflict Resolution

NOTES

I P.A. Gwartney, F. Fessenden, and Gayle Landt, “Measuring the Long-term Impact of a

Community Conflict Resolution Process: A Case Study Using Content Analysis of Public
Documents,” Negotiation Journal 18(1) (2002): 51-74; Marc Howard Ross and Jay
Rothman, Theory and Practice in Ethnic Conflict Management: Theorizing Success and
Failure (New York: St. Martin's Press, Inc. 1999).

“ J.P. McCrory, “Environmental Mediation — Another Piece For the Puzzle,” Vermont Law
Review 49 (1981): 77-79.

3 Lawrence E. Susskind and Connie Ozawa, “Mediated Negotiations in the Public Sector,”

American Behavioral Scientist 27, no. 2 (1983): 255-79.

4 Leonard G. Buckle, and Susann R. Thomas-Buckle, “Placing Environmental Mediation in

Context: Lessons From Failed Mediations,” Environmental Impact Assessment Review 6
(1986): 55-70.

5 Gail Bingham, Resolving Environmental Disputes: A Decade of Experience (Washington,

DC: The Conservation Foundation, 1986).

6 Rosemary O’Leary and Maja Husar, “That Environmental and Natural Resource Attorneys

Really Think About Alternative Dispute Resolution: A National Survey,” Natural Re-
sources and Environment, 16, no.4 (2002): 262-264.

7 Lisa A. Kloppenberg, "Implementation of court-Annexed Environmental Mediation: The

District of Oregon Pilot Project,” Ohio State Journal on Dispute Resolution, 17, no.3,
(2002): 559-596.

8 Lawrence E. Susskind, Mieke van der Wansern, and Armand Ciccarelli, "An Analysis of Re-

cent Experience with Land Use Mediation - Overview of the Consensus Building Institute’s
Study,” in Mediation Land Use Disputes Pros and Cons (Lincoln Institute of Land Policy,
2000).

9 Rosemary O’Leary and Susan Summers Raines, “Lessons Learned from Two Decades of

Alternative Dispute Resolution Programs and Processes at the U.S. Environmental Protec-
tion Agency,” Public Administration Review, 61, no.6, (November/December 2001): 682-
692.

10 Oregon Department of Justice, “Collaborative Dispute Resolution Pilot Project,” A report
submitted January 30, 2001, to the Honorable Gene Derfler, Senate President. The Honor-
able Mark Simmons, House Speaker, and The Honorable Members of the Legislature .

II Patricia Orr, “ECR Cost Effectiveness: Evidence From the Field,” Briefing (Tucson, AZ:
U.S. Institute for Environmental Conflict Resolution. April 16, 2003).

12 Rosemary O’Leary and Maja Husar, "That Environmental and Natural Resource Attorneys

Really Think About Alternative Dispute Resolution: A National Survey,” 2002.

13 Western Governors Association, Park City Principles (document produced following a series

of three workshops developed by Western Governors Association and Western States Water
Council), 1991.

14 These principles have recently been revisited in a 1998 Western Governor’s Association

document. See Chapter 10 for more details.

15 J.C. Neuman, “Run River Run: Mediation of a Water Rights Dispute Keeps Fish and Farm-
ers Happy for a Time,” University of Colorado Law Review 67 (Spring 1996): 259-339.

16 Resolve, What is Success in Public Policy Dispute Resolution? Building Bridges Between

Theory and Practice, A roundtable sponsored by Resolve and the National Institute for Dis-

Chapter Two

pute Resolution, Washington, DC, 1997; National Institute for Dispute Resolution, Final
Report: Fund for Research on Dispute Resolution (Washington DC: Author, 1996).

17 A.B. Dotson, “Defining Success in Environmental and Public Policy Negotiations,” (Unpub-

lished manuscript, no date).

18 Susan Carpenter and W.J.D. Kennedy. Managing Public Disputes (San Francisco: Jossey-

Bass, 1988).

19 Judith E. Innes, “Evaluating Consensus Building,” in Consensus Building Flanclbook, eds.

Lawrence Susskind, Sarah McKearnon, and Jennifer Thomas-Larmer, 631-675 (Thousand
Oaks, CA: Sage Publications, 1999).

20 Ti • i

Ibid.

21 e.g. Fritjof Capra, The Web of Life: A New Scientific Understanding of Living Systems (New

York: Anchor Books, 1996), and others.

■" P.A. Gwartney, F. Fessenden, and Gayle Landt, “Measuring the Long-term Impact of a Com-
munity Conflict Resolution Process: A Case Study Using Content Analysis of Public Docu-
ments,” 2002.

William Ury, J.M. Brett, and Stephen B. Goldberg, Getting Disputes Resolved: Designing
Systems to Cut the Costs of Conflict (San Francisco: Jossey-Bass Publishers, 1988).

" Dean G. Pruitt, et al. “Long-term Success in Mediation," Law and Human Behavior 17
(1993): 313-330.

25 James S. Kakalik, et al, An Evaluation of Mediation and Early Neutral Evaluation Under the

Civil Justice Reform Act, Report produced by the Institute for Civil Justice (Santa Monica,
CA: Rand, 1996).

26 Roselle L. Wissler, “Court-connected Mediation in General Civil Cases: What We Know
From Empirical Research,” Ohio State Journal on Dispute Resolution 17 (3), (2002): 64 1 -
704.

27 Ibid.. 697-698.

28 Robert A. Baruch Bush, “Defining Quality in Dispute Resolution: Taxonomies and Anti-
taxonomies of Quality Agreements,” Denver University Law Review 66 (1989): 335-380.

29 Harry T. Edwards, “Commentary: Alternative Dispute Resolution: Panacea or Anathema?”

Harvard Law Review 99 (1986): 668-684.

30 Edward Brunet, "Questioning the Quality of Alternative Dispute Resolution,” Tulane Law
Review 1, no. 62 (1987): 1-56.

31 M. P. Clagett, "Environmental ADR and Negotiated Rule and Policy Making: Criticisms of

The Institute For Environmental Conflict Resolution and The Environmental Protection
Agency,” Tulane Environmental Law Review 15 (2002): 409-417.

32 C. Bourdeaux, Rosemary O’Leary and R. Thornburgh, “Control, Communication, and
Power: A Study of the Use of Alternative Dispute Resolution of Enforcement Actions at the
U.S. Environmental Protection Agency, Negotiation Journal 17(2) (2001): 175-191.

33 B.L. Lamb, N. Burkardt and J.G. Taylor, “the Importance of Defining Technical Issues in
Interagency Environmental Negotiations,” Public Works Management & Policy 5(3) (2001):

218-223.

34 Dean G. Pruitt, et al., “Long-Term Success in Mediation,” Law and Human Behavior 17
(1993).

35 Gail Bingham, Resolving Environmental Disputes: A Decade of Experience, 1986.

36 Ibid., 73.

37 Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict
(San Francisco, CA: Jossey-Bass, 1987).

38 Ibid., 6, 14.

39 A.B. Dotson, "Defining Success in Environmental and Public Policy Negotiations,” no date;

Judith E. Innes, “Evaluating Consensus Building,” 1999.

Defining and Evaluating Success in Environmental Conflict Resolution

40 E. Allen Lind, and Tom R. Tyler, The Social Psychology of Procedural Justice (New York:

Plenum Press, 1988).

41 Ibid.

42 Ibid.

43 G.S. Leventhal, “What Should Be Done With Equity Theory?” in Social Exchange: Ad-
vances in Theory and Research, eds. K. J. Gergen, M. S. Greenberg, and R. H. Weiss (New
York: Plenum Press, 1980); E. Allen Lind and Tom R. Tyler, The Social Psychology of
Procedural Justice, 1988; Tom R. Tyler, "The Psychology of Procedural Justice: A Test of
the Group-value Model,” Journal of Personality and Social Psychology 57 (1989): 830-
838; C. Bourdeaux, Rosemary O’Leary and R. Thornburgh, “Control, Communication, and
Power: A Study of the Use of Alternative Dispute Resolution of Enforcement Actions at the
U.S. Environmental Protection Agency,” 2001.

4 E. Barrett-Howard and Tom R. Tyler, “Procedural Justice as a Criterion in Allocation Deci-
sions,” Journal of Personality and Social Psychology 50 (1986): 296-304.

45 Janice A. Roehl, “Measuring Perceptions of Procedural Justice,” (doctoral dissertation,
George Washington University 1988).

46 Jonathan Raab, Using Consensus Building to Improve Utility Regulation (American Council

for an Energy Efficient Economy: Washington, D.C., 1994); also Judith E. Innes, "Evaluat-
ingConsensusBuilding,” 1999.

47 Bonnie Colby and Gail Bingham, “Economic Components of Success in Resolving Envi-
ronment Policy Disputes,” Resolve Newsletter 28 ( 1997).

4S Lawrence E. Susskind, Mieke van der Wansem, and Armand Ciccarelli, "An Analysis of
Recent Experience with Land Use Mediation - Overview of the Consensus Building Insti-
tute's Study,” 2000; Oregon Department of Justice, “Collaborative Dispute Resolution Pilot
Project,” A report submitted January 30, 2001; Rosemary O’Leary and Susan Summers
Raines, “Lessons Learned from Two Decades of Alternative Dispute Resolution Programs
and Processes at the U.S. Environmental Protection Agency,” 2001; Rosemary O’Leary and
Maja Husar, “That Environmental and Natural Resource Attorneys Really Think About Al-
ternative Dispute Resolution: A National Survey,” 2002; Lisa A. Kloppenberg, “Implemen-
tation of Court- Annexed Environmental Mediation: The District of Oregon Pilot Project,”
2002 .

49 Kirk Emerson, “A Critique of Environmental Dispute Resolution Research,” (presentation to

the Conflict Analysis and Resolution Working Group Seminar, University of Arizona,
1996); Judith E. Innes, “Evaluating Consensus Building,” 1999.

50 Fisher, William Ury, and Bruce Patton, Getting to Yes, 1991 .

51 Lawrence E. Susskind, Ravi K. Jain, and Andrew O. Martyniuk, Better Environmental Policy

Studies: How to Design and Conduct More Effective Analyses (Washington, DC: Island
Press, 2001) 236-9 and 273-6; Lawrence E. Susskind, P. Levy, and Jennifer Thomas-
Lemer, Negotiating Environmental Agreements: How to Avoid Escalating Confrontation,
Needless Costs, and Unnecessary Litigation (Washington, DC: Island Press, 2000).

52 Best Alternative To a Negotiated Agreement (BATNA), a strategy notion from Roger Fisher,

William Ury, and Bruce Patton, Getting to Yes, 1991.

73 Rosemary O’Leary and Maja Husar, “That Environmental and Natural Resource Attorneys
Really Think About Alternative Dispute Resolution: A National Survey,” 2002.

54 Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict

(San Francisco, CA: Jossey-Bass, 1987).

55 Dean G. Pruitt, et al., “Long-term Success in Mediation,” 1993.

56 Christopher W. Moore, The Mediation Process: Practiced Strategies for Resolving Conflict,

1987.

Chapter Two

57 M. P. Clagett, “Environmental ADR and Negotiated Rule and Policy Making: Criticisms of

The Institute For Environmental Conflict Resolution and The Environmental Protection
Agency,” 2002.

58 Howard Raiffa, The Art and Science of Negotiation (Cambridge, MA: Harvard University

Press, 1982).

59 Ibid; see also Lawrence Susskind and Jeremy Cruikshank, Breaking the Impasse: Consensual
Approaches to Resolving Public Disputes (New York: Basic Books, 1987).

60 E. Allen Lind and Tom R. Tyler, The Social Psychology of Procedural Justice, 1988.

61 Dean G. Pruitt, et al., “Long-term Success in Mediation,” 1993.

62 Tom R. Tyler and E Griffin, “The Influence of Decision-Maker Goals on Resource Alloca-

tion Decisions,” Journal of Applied Social Psychology 66 (1991): 1629-1658.

63 N. Meierding, “Does Mediation Work? A Survey of Long-Term Satisfaction and Durability

Rates for Privately Mediated Agreements,” Mediation Quarterly 11 (1993): 157-170.

64 Dean G. Pruitt, et al., “Long-term Success in Mediation,” 1993.

65 Ibid.

66 P.A. Dillon, and Robert E. Emery, “Divorce Mediation and Resolution of Child Custody
Disputes: Long-Term Effects,” American Journal of Orthopsychiatry 66 (1996): 131-140;
Joseph R. Johnston, Linda E. G. Campbell, and Mary C Tall, “Impasses to the Resolution of
Custody and Visitation Disputes,” American Journal of Orthopsychiatry 55 (1985): 1 12-
119; Susan L Keilitz, Harry W.K. Daley, and Roger A. Hanson, Multi-State Assessment of
Divorce Mediation and Traditional Court Processing, project report for the State Justice In-
stitute (Williamsburg, V A. 1992); Joan B. Kelly, “Mediated and Adversarial Divorce
Resolution Processes: An Analysis of Post-Divorce Outcomes, ” final report prepared for the
Fund for Research in Dispute Resolution, (1990); Jessica Pearson, “Family Mediation,” in A
Report on Current Research Findings - Implications for Courts and Future Research
Needs, ed. Susan L. Keilitz, National Symposium on Court-connected Dispute Resolution
Research, State Justice Institute, 1993 (1994); Jessica Pearson and Nancy Thoennes, “Di-
vorce Mediation: Reflections on a Decade of Research,” Mediation Research, in eds. K.
Kressel and Dean Pruitt, 9-30 (San Francisco, CA: Jossey-Bass, 1989).

' Susan L Keilitz, Harry W.K. Daley, and Roger A. Hanson, Multi-State Assessment of Di-
vorce Mediation and Traditional Court Processing, 1992.

68 K. William Easter, "Economic Failure Plagues Public Irrigation: An Assurance Problem,”

Water Resource and Research 29 (1993): 1913- 1 222; C.F. Runge, “Institutions and the Free
Rider: The Assurance Problem in Collective Action,” Journal of Politics 46 (1984): 154-
181.

69 N. Meierding, “Does Mediation Work? A Survey of Long-Term Satisfaction and Durability

Rates for Privately Mediated Agreements,” 1993.

70 Donald T. Saposnek, Mediating Child Custody Disputes: A Systematic Guidefor Family

Therapists, Court Counselors, Attorneys, and Judges (San Francisco, CA: Jossey-Bass,

1983), as cited in J.A. Walker, “Family Conciliation in Great Britain: From Research to
Practice to Research,” Mediation Quarterly 24 (1989): 34.

G. Davis, and M. Roberts, Access to Agreement (Milton Keyes, UK: Open University Press,
1988), as cited in J.A. Walker, “Family Conciliation in Great Britain: From Research to
Practice to Research,” Mediation Quarterly 24 (1989): 34.

" Further documentation of its importance in literature, as well as additional measurement
approaches, can be found in Tamra Pearson d’Estree, “Achievement of Relationship
Change,” in The Promise and Performance of Environmental Conflict Resolution, eds.
Rosemary O’Leary and Lisa B. Bingham, 11 1-128 (Washington, DC: Resources for the Fu-
ture, 2003).

73 Dean G. Pruitt, et al., “Long-term Success in Mediation,” 1993.

Defining and Evaluating Success in Environmental Conflict Resolution

74 G. Davis, and M. Roberts, Access to Agreement, 1988.

75 Susan L Keilitz, Harry W.K. Daley, and Roger A. Hanson, Multi-State Assessment of Di-
vorce Mediation and Traditional Court Processing, 1992.

6 Joseph R. Johnston, Linda E. G. Campbell, and Mary C Tall, “Impasses to the Resolution of
Custody and Visitation Disputes,” 1985.

' Murray A. Straus, “Measuring Intrafamily Conflict and Violence: The Conflict Tactics (CT)
Scales ’’ Journal of Marriage and the Family 41(1 979 J :75— 86.

78 e.g. Christopher W. Camplair, and Arnold L. Stolberg, Benefit of Court-Sponsored Divorce
Mediation: A Study of Outcomes and Influences on Success (Publisher Unknown, 1990).

79 Patrick Regan, “Conditions of Successful Third-Party Intervention in Interstate Conflicts,”
Journal of Conflict Resolution 40 (1996): 336-359; Duane Bratt, “Assessing the Success of
UN Peacekeeping Operations,” International Peacekeeping 3 (1997): 64-81.

80 P.A. Gwartney, F. Fessenden, and Gayle Landt, “Measuring the Long-term Impact of a Com-

munity Conflict Resolution Process: A Case Study Using Content Analysis of Public Docu-
ments,” 2002.

81 One practitioner described this shift as one noticeable in “the way they held their arms” and

in the pronouns parties used to referred to others and to themselves (“we” vs. “us” and
“them”).

8 " For a new effort to examine shifts, see Berenike Carstarphen, “O.H.M. Shift Happens: Trans-
formations During Small Group Interventions in Protracted Social Conflicts,” (Unpublished
doctoral dissertation, George Mason University, 2000).

83 Donald H. Baucom and Norman Epstein, "Will the Real Cognitive-Behavioral Marital Ther-

apy Please Stand Up?” Journal of Family Psychology 4 (1991): 394-401.

84 Ibid.

85 Carlos E. Sluzki, “Transformations: A Blueprint for Narrative Changes in Therapy,” Family

Process 31 (1992): 217-230.

S6 For more details on these dimensions, consult Carlos E. Sluzki, “Transformations: A Blue-
print for Narrative Changes in Therapy,” or our research Guidebook in Appendix A.

87 Robert A. Baruch Bush, and Joseph P. Folger, The Promise of Mediation: Responding to
Conflict Through Empowerment and Recognition (San Francisco: Jossey-Bass. 1994);
Franklin Dukes, “Public Conflict Resolution: A Transformative Approach,” Negotiation
Journal 9(1), (1993): 45-57; Carrie Menkel-Meadow, “Pursuing Settlement in an Adversary
Culture: A Tale of Innovation Co-opted or ‘the Law of ADR,’” Florida State University
Law Review 19(1), (1991): 1-46; Carrie Menkel-Meadow, “The Many Ways ofMediation:
the Transformation of Traditions, Ideologies, Paradigms, and Practices,” Negotiation Jour-
nal 1 1 (1995): 217-242.

88 Robert A. Baruch Bush, and Joseph P. Folger, The Promise ofMediation: Responding to
Conflict Through Empowerment and Recognition, 1994.

89 Cf. V. Held, Justice and Care: Essential Readings in Feminist Ethics (Boulder, CO: West-

view, 1995)

90 Carrie Menkel-Meadow, “Pursuing Settlement in an Adversary Culture: A Tale of Innova-
tion Co-opted or ‘the Law of ADR,”’ 1991; Franklin Dukes, “Public Conflict Resolution: A
Transformative Approach,” 1993; John Paul Lederach, Preparing for Peace: Conflict
Transformation Across Cultures (Syracuse, NY: Syracuse University Press, 1995); John
Paul Lederach, Building Peace: Sustainable Reconciliation in Divided Societies (Washing-
ton D.C.: U.S. Institute of Peace Press, 1997).

91 Robert A. Bush, and Joseph P. Folger, The Promise ofMediation: Responding to Conflict

Through Empowerment and Recognition, 1994.

92 Tina Nabatchi and Lisa B. Bingham, "Expanding Our Models of Justice in Dispute Resolu-

tion: A Field Test of the Contribution of Interactional Justice” (paper presented at the an-
nual meeting of the International Association of Conflict Management, 2002).

Chapter Two

93 Shawn MacDonald, “Social Capital and Its Measurement” (Unpublished manuscript, George
Mason University, 1999).

94 James S. Coleman, “Social Capital in the Creation of Human Capital,” American Journal of

Sociology 94 (supplement), (1988): S95-S120; James S. Coleman, Foundations of Social
Theory (Cambridge, MA: Harvard University Press, 1990).

3 Robert D. Putnam, "The Prosperous Community: Social Capital and Public Life," American
Prospect 13, (1993): 35-42; Robert D. Putnam, Bowling Alone: America’s Declining Social
Capital," Journal of Democracy 6 (1), (1995): 65-78.

96 A. Portes, "Social Capital: Its Origins and Applications in Modern Sociology,” Annual Re-

view of Sociology 24 (1998).

97 Pierre Bourdieu, “The Forms of Capital,” in Handbook of Theory and Research for the Soci-

ology ofEducation, ed. J. Richardson (Westport, CT: Greenwood Press, 1986).

95 Francis Fukuyama, Trust: Social Virtues and the Creation of Prosperity (New York: Simon

& Schuster, 1995).

99 Judith E. Innes, "Evaluating Consensus Building,” 1999.

100 J. C. Allen, "Community Conflict Resolution: The Development of Social Capital Within
An Interactional Field,” Journal of Socio-Economics 30 (2001): 119-120.

101 P.A. Gwartney. F. Fessenden, and Gayle Landt, "Measuring the Long-term Impact of a
Community Conflict Resolution Process: A Case Study Using Content Analysis of Public
Documents,” 2002.

102 Francis Fukuyama, Trust: Social Virtues and the Creation of Prosperity, 1995.

103 Judith E. Innes, “Evaluating Consensus Building,” 1999.

104 We define “ability to resolve future disputes," above, as specifically applied to the same
relationships rather than new relationships.

105 Judith E. Innes, "Evaluating Consensus Building,” 1999.

1M Ibid.

107 Chris R. Argyris, Robert D. Putnam, and D.M. Smith, Action Science (San Francisco:
Jossey-Bass, 1985).

108 Ronald J. Fisher, Interactive Conflict Resolution (New York: Syracuse University Press,

1997 ).

Chapter Three

COMPARATIVE CASE ANALYSIS

Developing and Applying Methods

METHODOLOGY OVERVIEW

Goals for Evaluating Criteria and Cases

In her important contribution to the topic of evaluating conflict resolution
outlined in the previous chapter, Innes 1 presented both the challenges and the
opportunities of performing evaluations. She and her colleagues have found in
their separate evaluations of consensus-building processes that what seem like
failures may actually be successes, while apparent successes can actually be
failures. For example, processes that ‘failed’ to reach an agreement may have
‘succeeded’ in establishing an ongoing working relationship. Imbedded in this
proposition is the central role of the criteria that are chosen to represent and
evaluate success. Her observation also implies that it is important to identify
the comparison standard being used. In other words, a given conflict resolu-
tion process is always evaluated by how it compares to something, whether it
be to an alternative, to an ideal, or to the situation at an earlier time.

Earlier, we outlined the many components that comprise people’s varying
conceptions of ‘success’ (see Figure 2.1). In addition to examining the defini-
tion of success, we had two additional goals. First, we sought to make case
study reporting more thorough, both in terms of the information that is needed
to analyze success and to make the reporting more standardized. Second,

Chapter Three

building on this standardized reporting, we wanted to begin the task of com-
paratively analyzing cases to gain a new understanding of the links between
various practices and processes and their results. This involves not only iden-
tifying the appropriate criteria for success, but also detailing how those crite-
ria should be measured, and how the resulting information ultimately might
be analyzed and compared.

So that we might begin to use these criteria to understand what was
achieved in various cases of environmental conflict resolution, we had to put
the criteria into a form that would allow them to be systematically and regu-
larly applied to cases. This measurement framework, or Guidebook, includes
all the criteria defined and operationalized through multiple indicators (see
Appendix A). Once this common framework for reporting and assessment
was developed, it was then applied in a common fashion to several cases, and
case studies were generated using similar formats. This allowed the cases to
be compared according to each criterion.

This type of analysis using a common framework has generated richly de-
tailed reports of the various case studies themselves, in addition to allowing
an important analysis across the cases. Prior to this study, a systematic case
comparison across multiple variables had not been done in the environmental
conflict resolution arena. Such comparative case analysis allows us to accu-
mulate insights from across cases in order to gain a better understanding of
the way different processes are used to accomplish varying goals in resolving
environmental disputes.

The Value of a Case Study Approach

In order to accomplish the overall objective of developing a framework for
evaluating success in environmental conflict resolution, eight case studies of
western U.S. water conflicts were analyzed. The case studies were an essen-
tial element in the research design. It was through analysis of actual cases that
we examined the feasibility of taking abstract success concepts (criteria) and
crafting questions designed to allow researchers to gather information needed
for their assessment. The process entails transforming abstract ideals of suc-
cess into concrete applicable measures, an exercise that can only be tested by
being applied to actual conflict cases.

The Importance of Comparative Analysis

As outlined in the previous chapter, several calls, most prominently from
Innes and Emerson , 2 have been made for a comparative analysis of conflict
resolution processes. Comparative claims have been made for increased effi-
ciency, reduced costs, improved relations, and a better quality of justice.
However, little if any comparative work has relied on a common analytic

Comparative Case Analysis

framework to substantiate these claims. As Emerson notes, there is an impor-
tant gap in comparing various ‘alternative dispute resolution’ (ADR) proc-
esses to other more traditional and institutionalized processes, which represent
the common alternatives. We begin this comparative analysis process here,
with the hope that it will become more common as a universe of similarly
documented cases grows.

A FRAMEWORK FOR CONSISTENT CASE
DOCUMENTATION: THE CASE ANALYSIS GUIDEBOOK

Development of the Guidebook

In order to examine systematically the selected cases within our criteria
conceptual framework, each criterion needed to be made operational. How
does one prevent a case review from becoming merely an impressionistic
snapshot, framed by the particular “lens” of the reviewer? The answer lies in
setting out common conceptual categories in advance, and specifying the way
each concept (or, in this case, each criterion) will be measured.

Information gathered in this way will likely be more “objective” in the
sense that it can be replicated by various researchers (i.e., other researchers
will find the same information), thereby satisfying the “intersubjectivity” cri-
terion considered standard in empirical research. 3 Once the information is
gathered in this standard way, it can be compared across cases easier, since
each reviewer is using the same “measuring stick.” Because we attempted to
comprehensively include all criteria considered relevant to success, anyone
interested in making comparisons should be able to find their chosen “measur-
ing stick” of interest.

The Case Analysis Guidebook (initially circulated as a “working guide”)
was formulated based on the criteria conceptual framework outlined in Chap-
ter 2. It is included in full in Appendix A. The guide identifies the information
needed to assess the case studies on each of the success criteria.

The Case Analysis Guidebook was first drafted by the principal investiga-
tors, and then modified over a period of several months through a series of
interactive dialogues (via meetings and email) between the principal investi-
gators and the first case researchers who were primarily graduate students at
George Mason University. 4 These discussions served to sharpen the defini-
tions of the success criteria and to generate more specific ideas about the in-
formation needed to operationalize them. The Guidebook was then used by
the case researchers as a framework for approaching and framing each case,
looking for sources, and analyzing the case itself. This process is reviewed
below. As a result of this “testing” or “piloting” of the Guidebook as a tool.

Chapter Three

several revisions were incorporated. These included a further clarification of
the criteria, the creation of additional indicators to operationalize these crite-
ria, a further discrimination of initially overlapping constructs, and the inclu-
sion of information to aid researchers, including sources and the best times to
assess the variables.

Our piloting and subsequent case research revealed that criteria ideally
should be assessed at several points in time over the course of a conflict: (1)
baseline, before the resolution process, (2) during the resolution process, (3)
immediately upon completion/signing, (4) short-term after the agreement or
settlement, and finally, (5) long-term after the agreement or settlement. Most
criteria are not capable of being assessed at every stage; we discuss difficul-
ties in assessment in Chapter 9. However, knowing which criteria to assess at
which stage can make evaluation easier (see figure 3.1, and individual criteria
in the Guidebook Appendix). Any criteria that measure change will require a
baseline assessment against which to gauge any movement. Most criteria are
best assessed at one or two different points in time, and are more difficult to
assess at other points. Such knowledge can assist case researchers in gathering
information most effectively.

BASELINE

before

resolution

process

DURING

the

resolution

process

Immediately upon
COMPLETION
or signing

IMPLEMENTATION

SHORT-

TERM

after

Outcome

LONG-TERM

after

Outcome

Figure 3.1 Stages for Criteria Assessment

A CONTEXT FOR EVALUATION: CASES OF WESTERN
WATER DISPUTES IN THE AMERICAN WEST

Selection of Cases

Eight cases were selected for analysis after reviewing a larger set of west-
ern U.S. water conflicts. The cases were chosen based on geographic diversity
across the southwest, the diversity of issues contributing to each conflict, the
types of resolution mechanisms attempted and preliminary evidence that
sources would be available for researchers to analyze the case.

Comparative Case Analysis

Four of the cases are described in great detail in Part II, Chapters 4-7, but
each of the eight cases is reviewed briefly here.

The Rig Horn case involves a dispute between two tribes and their
neighboring non-Indian irrigators over water for tribal purposes (including
instream flows) on the Wind River Reservation in western Wyoming. The
conflict has been active since the 1970s, though its roots date to non-Indian
settlement in the 1800s. Litigation has been the primary conflict resolution
mechanism employed in the conflict.

The Edwards Aquifer case in Texas involves a conflict over dividing lim-
ited regional water supplies between agricultural and urban groundwater
pumpers and the endangered species and recreation that depend on spring
flows that are linked to groundwater levels. The dispute began in the 1950s
and has been addressed through litigation, political bargaining and state legis-
lation.

The Lower Colorado River case involves the states of Nevada, California
and Arizona, along with agricultural, urban, tribal and environmental interests
in those states. Disputes over dividing the waters of the Colorado River date
back to the early 1900s and have been addressed through litigation, multi-
party negotiations and state and federal legislation or administrative actions.

The Mono Lake case involves a dispute over the effects of water diver-
sions in the Sierra Nevada mountains among rural, urban, tribal and environ-
mental interests in southern California. The dispute dates back to the 1960s
and has been addressed by litigation, multi-party negotiations, state legislative
and administrative actions, federal agency actions, and federal legislation.

The Pecos River case is a dispute over the interstate allocation of surface
water between New Mexico and Texas. The conflict erupted in the 1940s and
appeared to have been resolved by an interstate compact. It re-emerged in the
1970s and has been addressed through litigation and state legislation.

The Pyramid Lake case involves a dispute over water supplies, and water
quality in two interconnected river basins in western Nevada. The parties in-
clude two tribes, several cities and counties, the states ofNevada and Califor-
nia, and multiple federal agencies and environmental interests concerned with
endangered species of fish and wetland preservation. The dispute has been
active in various forms since the early 1900s. In the past two decades, it has
been addressed through litigation, multi-party negotiations, state and federal
legislation and administrative actions, and water rights acquisitions by envi-
ronmental organizations.

The Salt River case involves a dispute over the allocation of water among
rapidly growing cities, a Native American tribe and agricultural interests in
central Arizona. The conflict has been active in various forms since the early
1900s. It has been addressed through litigation, multi-party negotiations, and
federal legislation.

Chapter Three

The Snowmass Creek case is a dispute over water diversions and instream
flow needs between a ski resort, local residents and environmental interests in
the Rocky Mountains of Colorado. The dispute emerged in the 1970s and has
been addressed through litigation, multi-party negotiations and state legisla-
tion.

The eight case studies share the common thread that they involve multi-
party conflicts over water resources in the American West. The cases can be
viewed as a representative, stratified sample selected to represent several dif-
ferent classes of “classic” conflicts over western water. Two cases are dis-
putes between states over the allocation of interstate rivers (Lower Colorado
River, Pecos River). Three cases are disputes between Native American tribes
and neighboring non-Indian water users (Big Horn, Pyramid Lake and Salt
River). Five cases (including two of the tribal cases previously mentioned)
involve conflicts between consumptive water uses (farming, urban develop-
ment, snow making) and environmental needs for water in streams and wet-
lands (Big Horn, Edwards Aquifer, Mono Lake, Pyramid Lake and Snow-
mass).

In addition to representing the classic configurations of parties and issues
found in western water disputes, the cases also provide a representative cross
section of attempted dispute resolution processes. Two cases were eventually
resolved after lengthy negotiations among the parties, with the resulting
agreements formalized (and altered somewhat) as acts of Congress (Pyramid
Lake, Salt River). In another two cases, the “resolutions” came through court
rulings after lengthy litigation (Big Horn, Pecos River). The “agreements”
analyzed for two other cases were administrative actions-the issuing of a rul-
ing by the California Water Resources Control Board in the Mono Lake case
and the promulgation of federal agency rules in the Lower Colorado River
case. In the remaining two cases, the agreement analyzed was state legislation
(Edwards Aquifer and Snowmass Creek). While it was necessary for the re-
searchers to select a specific form of resolution (i.e., court ruling, legislation,
etc.) and time period in the course of the dispute in order to focus their efforts,
the histories of each case reveal a rich mixture of different conflict resolution
processes. Litigation was a vital motivating factor at some point in every case
and court rulings specifically prompted the two legislative agreements, the
Mono Lake administrative ruling and the Pyramid Lake and Snowmass nego-
tiated agreements.

By examining quite different types of “resolutions,” this study went be-
yond prior research in environmental conflict resolution, which only com-
pared across negotiated agreements. We expanded beyond negotiated agree-
ments because we wanted to develop a means of evaluating “success” across
the variety of resolution mechanisms that are actually utilized by parties in
attempting to bring closure to environmental conflicts. This proved quite chal-
lenging as some success criterion that apply quite clearly to negotiated agree-

Comparative Case Analysis

ments (process quality, reaching agreement) are difficult to apply to litigation
and court rulings or legislation. However, it seemed essential to the puiposes
of this project to go beyond negotiated agreements in order to understand
whether and how “success” could be measured and compared across different
types of “resolutions.”

TERMINOLOGY AND THE FOCUS OF ANALYSIS

One of the goals of this book is to provide a framework that allows for
comparison not only across cases, but also across conflict resolution methods.
The research methodology has been developed and tested on cases involving
various combinations of negotiation, administrative rulemaking, legislation,
and litigation. This allows for comparative analysis and a preliminary discus-
sion of the strengths and weaknesses of various methods of conflict resolu-
tion.

However, it is difficult to develop a general terminology for evaluation be-
cause different methods of conflict resolution have different goals and out-
comes. For example, certain processes aim to produce “agreement,” while
others do not. Therefore, we adopted the general term “Outcome” (capitalized
to signify its special use) to encompass the output of whichever process is
being considered.

Many of the analyzed cases extend over several decades, with the conflict
moving through stages of litigation, negotiation, agency actions and legisla-
tive responses, producing multiple Outcomes. For the puiposes of applying
this research methodology, case study analysts were instructed to select a par-
ticular' Outcome and time period on which to focus. In several cases, two or
more very closely related Outcomes were analyzed together. This occurred
particularly in the Pyramid Lake case (a negotiated agreement was modified
by Congress and enacted as federal legislation), the Snowmass Creek case (a
local negotiated agreement required state legislation to legitimize provisions
of the agreement), and the Pecos River case (a court ruling was followed by a
negotiated agreement that was then formalized by the court as a stipulated
ruling).

Whether selecting a single Outcome or several that are closely related, it is
essential to choose a well-defined timeframe for this type of case analysis.
Failure to define the process and the Outcome would result in criteria being
applied to multiple objects simultaneously, and would yield no clear meas-
urement of any specific process or Outcome. This methodology requires care-
fully defining the boundaries of which process and Outcome is being as-
sessed, even though this may require a bit of artificial separation.

A full case analysis covering the entire history of an environmental con-
flict and its multiple outcomes is possible, but it would require sequential

Chapter Three

analyses for different Outcomes and time periods (phases in a complex con-
flict resolution process). Each phase of litigation, legislative actions, and other
processes (along with their respective Outcomes) would need to be treated
with distinct sequential applications of this framework in order to ensure that
the criteria are meaningfully applied. Thus the framework allows for either
form of analysis: single outcome and timeframe, or multiple-stage and out-
comes analyzed sequentially.

PROCEDURE

Analyzing the Individual Cases: Applying Criteria

As noted above, a summative evaluation of individual cases, per se, was
not our goal. To produce summative judgments of a case’s ‘success’ would
require that we choose from among the criteria and weight the criteria to ex-
press a ‘policy’ of what constitutes success. This would then be applied to the
chosen case to provide an overall assessment. Instead, one of our goals was a
more thorough analysis of individual cases, as well as an analysis that used a
common framework to allow for comparative analysis (see below).

Once our methodology was established, researchers could then approach
and analyze the water disputes outlined above. One principal investigator (PI)
and four of the graduate students involved in the dialogues also served as case
study researchers, giving them an opportunity to use the tool they had helped
to develop. The researcher on the Snowmass Creek case study was a former
graduate student of one of the Pi’s, who now operates her own economic re-
search business. The researchers varied a good deal in their disciplinary and
professional backgrounds, however they all had some combination of exper-
tise in economics, environmental law, environmental policy, conflict resolu-
tion, and journalism.

One or two case studies were assigned to each case researcher, with in-
structions to follow the guide in choosing what information to collect and in
organizing the format for reporting the information. The researchers typically
began by familiarizing themselves with their cases, and proceeding to track
down sources. Some were easily available, while other sources required sub-
stantial effort and follow-up for the researchers to locate them in archives or
to obtain them from public documents. The availability of the sources varied
with each case. The process of gathering information and writing the cases
required a substantial investment of time, and many details needed to be ad-
dressed midstream. These included instructions on how much the analysts
could solicit information directly from parties and the ideal length of the sub-
mitted material.

Comparative Case Analysis

Sources suggested by the Pi’s fell into two categories, “insiders” (negotia-
tion participants and mediators), and the perceptions of “outsiders” (public
opinion, etc.). “Insider” sources included the following: Media inter-
views/quotes from the parties; internal documents from the parties, such as
newsletters, memos, reports to members (environmental groups), stockholders
(corporations, utilities), public relations documents, advertisements, videos,
web sites; paid media spots commenting on issues; protests, picketing or other
public activities; memos (or other documents) circulated among parties after
the agreement was developed; and reports by any mediators/facilitators. “Out-
sider” sources included the following: Newspaper articles (community, re-
gion, High Country News); editorials or Op Eds; TV and radio coverage; paid
media spots commenting on issues; and any protests, picketing, or other pub-
lic activities. Some researchers made significant use of the internet, revealing
the power and richness of this source of information.

In addition to the variability of the available sources, the diverse levels and
types of experience among the researchers themselves proved to be both as-
sets and challenges. We include what we learned were helpful characteristics
for those who are considering hiring researchers or supervising student re-
searchers to look for:

1) good writing skills

2) persevering (sleuthing) researchers: library, legal docs and Inter-
net skills, good at “digging,” but able to distinguish research writ-
ing from journalism

3) maturity, refrain from personal judgments or editorializing

4) careful referencing, quoting, meticulous on details, accuracy

5) knowledge of laws and policies and institutional structure, for in-
stance - federal agencies and their structure and knowing whether
a settlement needs court approval or not (Guidebook appendices
were developed to assist in this)

6) good people skills to solicit information or good “connections”

7) ability to translate technical, scientific legal terms into everyday
language.

8) ability to discern the interests of diverse parties and to articulate
them; not blinded by own point of view.

It was also found that personal links to the case could prove to be both an
asset and a liability. Personal involvement and prior experience with a case
could provide context, access to additional sources of information, and a fa-
miliarity useful for knowing what to look for. However, for the sake of this

Chapter Three

analysis researchers were asked to only use publicly accessible information so
that we might test accessibility (see Chapter 9), so researchers with personal
links had to avoid private sources of information that they knew existed.

It was determined that being “local” to the area of the dispute would be a
significant advantage. Certain disputes did not garner much national attention,
which made it more difficult to gain access to media sources. Being locally
present also would allow researchers to easily gather agency reports, public-
meeting minutes, and other documents that are publicly available in theory
but not easily gathered from busy staff people at a distance. Also, certain cri-
teria themselves were difficult to assess without being locally present during
the process (see criteria under “Process Quality” in Guidebook Appendix A).
It is interesting to consider what the impact might be of having a mediator do
a case analysis, or at least contribute to the case study.

While our researchers would have found it very useful, we explicitly ex-
cluded interviewing as a method of gathering information. The Guidebook
was designed to provide for case analysis by graduate students using accessi-
ble public information, without personal interviews of mediators and stake-
holders. We chose to exclude interviewing for several reasons: the potential
for a substantial increase in research costs, the difficulty of independently
verifying the information from an interview if it is not published or publicly
available (intersubjectivity), and finally, our desire to assess what information
would be available without the use of interviews (see Chapter 9). Interviewing
also can be an intrusion on the system being studied and can have its own ef-
fects. We wanted our framework to be non-intrusive and low cost in collect-
ing and analyzing data, so it would not create burdens for process facilitators
and any parties who might wish to utilize it. In practice, we found it was often
difficult for researchers to separate the process ofrequesting (written and pub-
licly available, and therefore replicable) information and asking substantive
questions.

Researchers with adequate means and/or access may want to consider the
use of interviewing. For gathering certain information, interviews have no
substitute, and researchers may decide that it is worth the costs for their pur-
poses.

Once the information was gathered and presented in detailed case study
format, we were able to evaluate it in two distinctive ways, with separate ob-
jectives. First, the criteria themselves in our five categories were evaluated
across all eight cases. Second, the information was gathered in order to evalu-
ate the cases themselves using each of the five success criteria categories. 5
This would allow for a comparison across different cases to learn how “suc-
cess” (as measured by the various criteria) varied among the cases and to fur-
ther test the success evaluation process developed as part of this research pro-
ject.

Comparative Case Analysis

Evaluating the Criteria

Once the many criteria had been applied to several actual cases of water
disputes, we could begin to consider the usefulness of the criteria themselves.
To undertake this epistemological analysis, an analysis of our research tools
themselves, we had to first set out our higher-order criteria forjudging the
applied criteria qua criteria. The three measures used to evaluate the perform-
ance of the success criteria, as operationalized and applied to the case studies,
consisted of accessibility, reliability and validity.

Under accessibility, we asked whether information was able to be gathered
that answered the questions posed in the guide for each success criterion and
if not, why not. We noted the sources of information used, the triangulation of
information using independent sources, and the costs and difficulties of ob-
taining information. We also considered whether the criterion and information
requested in the guide might be recast to better match the available informa-
tion sources.

For reliability, we considered whether other researchers would have un-
covered the same information and developed the same impressions, and if the
researchers sought diverse viewpoints when investigating different questions
(and if not, why not). We also evaluated the degree to which collected infor-
mation was influenced by spurious factors, such as personal connections and
the disciplinary expertise of the researcher, the political and legal sensitivities
of the case, unorganized government offices, etc.

For validity we first considered whether each criterion was a conceptually
valid indicator of the success “concept” being addressed. For instance, is cul-
tural sustainability a valid indicator of “Outcome Quality” or is public ac-
knowledgement of outcome a valid indicator of “Outcome Reached”? Then we
asked whether the indicators used to operationalize each criterion were valid
for the success concept we sought to measure. If not, we reflected on whether
a different kind of question should have been asked for that criterion. We also
assessed whether the criterion was applicable, in its current conception, to the
different types of cases and Outcomes analyzed and, if not, how it could be
refined for broader applicability. For details on the indicators used to opera-
tionalize each criterion, refer to the Guidebook in Appendix A.

As we evaluated the success criteria for accessibility, reliability and valid-
ity, we also addressed some methodological questions. We examined the in-
formation the researchers were able to gather and then considered the timing
in the development of a case when information to assess a particular aspect of
success was most readily available. We found that, for many success criteria,
information becomes available at different points in the development of an
agreement and its implementation. For instance, under “Outcome reached” we
found that media sources and reports from parties were often available right
away to verify that an Outcome, such as an agreement, had been achieved.

Chapter Three

However, another aspect of “Outcome reached” was the inclusion of all key
parties, and we noted that the failure to include a key player might not become
evident until later, when the exclusion caused a problem in implementation.
Similar variations in the timing of ability to measure a specific aspect of a
success criterion were found for many criteria. Results of this criteria analysis
are reported in Chapter 9.

Comparing Cases and Processes

Once the criteria had been operationalized through indicators and collected
data, comparisons across cases could be made. Also, because we had chosen
cases that were representative of several dimensions of the larger population
of water conflicts, such as their issues and conflict resolution processes, tenta-
tive comparisons could be ventured across these dimensions as well. These
comparisons and conjectures have to remain tentative, given the small number
of cases in any given comparison. Results of these are discussed in Chapter 8.

REFLECTIONS ON THE EVALUATION PROCESS

We sought to begin the process of considering successful resolution by
identifying criteria and evaluating the process of applying them to real cases.
With the process we have developed, we can note how cases may rate accord-
ing to various criteria. However, we cannot comment on overall judgments of
success for these cases because to do so requires an additional step, of priori-
tizing (and weighting) the criteria, thereby incorporating values. This is ulti-
mately not a research question but a policy question. 6

However, once personal or community values were articulated, one could
use the Guidebook framework to generate judgments of success. After a user
(or researcher) had identified criteria priorities (for example, comparing cases
on environmental and cultural sustainability, without regard to cost orjustice
of process), and also made explicit what would be most and least desirable on
each of the indicators for the criteria, s/he could then compare only those cri-
teria across cases and produce a “judgment” of success.

As described earlier, Innes 7 and others have called for more comparative
case study analysis. If a body of cases were analyzed using this or a similar
framework, and indeed if new cases were recorded and reported according to
a common framework, then the cross-comparison of cases would be greatly
facilitated. In a similar vein, Lewicki, Gray, and Elliott 8 use a common set of
questions to facilitate cross-case comparison of “framing” in intractable envi-
ronmental conflicts. Similar standardized reporting on evaluation criteria top-
ics would allow for comparison and hypothesis-generation across criteria and
related conceptual dimensions.

Comparative Case Analysis

In sum, the evaluation framework in our Guidebook (Appendix A) pro-
vides several useful results. First, it helps to standardize the format of case
study reports. Our list of criteria and categories are all-inclusive, attempting to
reflect the diversity of variables linked by various scholars and practitioners to
understanding effective resolution. Guidebook users may decide to use only a
subset of criteria depending on their focus and their assumptions about suc-
cess. However, the presence of all likely criteria in one framework allows one
to ascertain information on all these variables so that comparisons can be
made across cases. Not only can cases be comparatively analyzed, but resolu-
tion processes (such as litigation, researching strategy, informal bargaining,
and mediation) can also be compared through this framework (see Chapter 8).

Second, the Guidebook provides a strategy for researching cases. What are
the dimensions that various writers and practitioners have considered are im-
portant to assess? Where would one go to find such information? When
should it be assessed? The Guidebook is structured to provide guidance in
what can be a daunting form of research. Third, the Guidebook provides a
framework for storing and organizing the many pieces of information relevant
to documenting and analyzing these complex cases. It serves as a “filing sys-
tem” or series of “file folders” that, once familiar, can make the task of orga-
nizing information easier and more thorough. Finally, the Guidebook serves
as a way to learn about the multiple issues involved in these cases, and about
the methodological issues involved in doing any case analysis and/or com-
parative research.

We now turn in Part II to four case examples of the use of the Guidebook
evaluation framework for individual case studies. We return in Part III to our
comparative analysis across all eight cases in our sample.

NOTES

1 Judith E. Innes, “Evaluating Consensus Building,” in Consensus Building Handbook, eds. L.
Susskind, S. McKearnon, and Jennifer Thomas-Larmer, 631-675 (Thousand Oaks, CA:
Sage Publications, 1999).

: Judith E. Innes, “Evaluating Consensus Building,” 1999; Kirk Emerson, A Critique of Envi-
ronmental Dispute Resolution Research, Presentation to the Conflict Analysis and Resolu-
tion Working Group Seminar, University of Arizona, April, 1996.

For a good resource on intersubjectivity, as well as current (and past) epistemological stan-
dards in social science, consult Martin Hollis, The Philosophy of Social Science (Cam-
bridge: Cambridge University Press, 1994).

4 Eric Abitbol, Annette Hanada. Kathryn Mazaika, and Erin McCandless.

5 Initial case analyses used the early five-category framework. The sixth category. Social Capi-

tal, was added subsequently, and most cases were thus revised and expanded. Comparative
analysis and criteria analysis were done on the five-criteria framework results.

Chapter Three

6 See related work by Kenneth R. Hammond, Lewis O. Harvey, & Reid Hastie, “Making Better

Lise of Knowledge, Separating Truth from Justice,” Psychological Science, 3(2), (1992): 80-
87.

7 Judith E. Innes, “Evaluating Consensus Building,” 1999.

8 Roy Lewicki, Barbara Gray, and Michael L.P. Elliott, eds.. Making Sense of Intractable Envi-

ronmental Conflicts: Concepts and Cases (Washington, DC: Island Press, 2003).

Part II

SAMPLE CASES

Case 1: The Mono Lake Case: Shaking Up the Established Powers

Kathryn Mazaika

Case 2: The Pyramid Lake Case: How Many Farms, Towns, Fish and

Ducks Can the Rivers Support?

Erin McCandless

Case 3: The Pecos River Case: Sharing a Resource Among Old Rivals

Annette Hanada and Landon Hancock

Case 4: The Snowmass Creek Case: High Country Tradeoffs

Kristine Crandall

The four case studies presented here are intended to provide useful
examples of the application of a common methodological framework. The
cases are not intended to provide exhaustive factual coverage of the details of
each case. We provide additional references to books andjournal articles that
readers can consult for more details on these cases. The four cases each were
researched by different authors with varying personal knowledge of the case
and access to information. The case researchers were asked to use only
publicly available information and were asked not to directly interview parties
to the case. These constraints were necessary to assess whether or not this
methodology could be implemented in a relatively low cost and unobtrusive
manner (that is, without collecting primary data and interviewing parties). In
the last section of this book, we examine whether the methodology was
successfully applied to various criteria in these case reports and reflect on the
difficulties that particular criteria present.

The chapters do not reflect the present status of the case; rather, each case
was researched at a specific point in time (generally 1999-2000) and each
focused on a specified time period and set of conflict resolution processes. All
of these cases remain active, in the sense that many of the parties described in

Part II: Sample Cases

these case studies continue to engage one another in problem solving and
conflict resolution efforts.

Prior to reading these cases, we recommend that readers examine
Appendix A, the Guidebook, in order to understand how the criteria were
defined, what information was sought and how the criteria are operationalized
in investigating a case.

Chapter Four

THE MONO LAKE CASE

Shaking Up the Established Powers

Case Researcher: Kathryn Mazaika

Water links us to our neighbor in a way more profound and
complex than any other.

John Thorson, Special Master in the Arizona General Stream Adjudication

All water has a perfect memory and is forever trying to get
back to where it was.

Toni Morrison

Note: This case report illustrates the use of a particular methodological
framework. It is not intended to replicate the legal and historical coverage of
this case provided in other sources. 1

Introduction: The Mono Lake case demonstrates the difficulties of ad-
dressing environmental impacts from water diverted long distances from its
remote (FYI — this is a valley on the Eastern side of the Sierra) origins to
supply water for cities. The areas east of the California Sierra Nevada moun-
tains and coastal cities embroiled in this conflict are shown in Figure 4.1.

The Mono Lake Case

Time period: Efforts to restore Mono Lake water levels spanned a period
of sixteen years, from 1978 to 1994, when the California State Water Re-
sources Control Board (SWRCB) issued Decision 1631, amending the Los
Angeles water rights licenses. This report summarizes the earlier actions that
led to Decision 1631, and evaluates the subsequent processes. This report was
compiled in 1998 and updated in 2000.

Basic nature of dispute: Concerns about the effects of water diversions
by the Los Angeles Department of Water and Power (DWP) on Mono Lake
and its ecosystem.

Issues: Mono Lake water level, water diversions pursuant to Water Right
License Nos. 10191 and 10192, and instream flows to support fisheries.

Actors and interests:

• Los Angeles Department of Water and Power, Interests: water
rights licenses, aqueduct facilities, water diversions.

• Mono Lake Committee, Interests: Mono Lake water level, fisheries,
streams and habitat.

• National Audubon Society, Interests: Mono Lake water level, fisher-
ies, streams and habitat.

• California Trout, Interests: instream flows and fisheries.

• California Department of Fish and Game, Interests: instream flows
and fisheries.

• U.S. Forest Service, Inyo National Forest, Interests: Mono Basin
National Forest Scenic Area.

• California Department of Parks and Recreation, Interests: Mono
Lake Tufa State Reserve.

• State Lands Commission, Interests: navigable waters (Mono Lake)
and the lands beneath them (lakebed and streams).

• Great Basin Unified Air Pollution Control District, Interests: air
quality-particulate matter.

• U.S. Fish and Wildlife Service, Interests: Mono Lake brine shrimp

( Artemia monica ).

• Sierra Club Legal Defense Fund, Interests: Mono Lake litigation
and precedents.

• Upper Owens River Landowners, Interests: effects of decreased di-
versions on the Upper Owens River.

Chapter Four

Attempted conflict resolution processes: Litigation, Water Board Evi-
dentiary Hearings, an Environmental Impact Report and the associated Cali-
fornia Environmental Quality Act (CEQA) process.

Specific Outcome analyzed: Decision 1631 issued by the California State

Water Resources Control board in 1994.

History of the Mono Lake Conflict 2

1941: Los Angeles Dept, of Water and Power begins diversion of Mono

Lake’s tributary streams.

1978: The Mono Lake Committee is formed to fight diversions and re-

store the lake.

1979: A public trust lawsuit is filed by a consortium of environmental

groups led by the Mono Lake Committee.

1983: The California Supreme Court rules that the state has an obligation

to protect Mono Lake.

1985: The Caltrout I water license challenge lawsuit is filed.

1986: The Lee Vining Creek lawsuit is filed.

1989: Lawsuits are combined into coordinated proceedings and the

SWRCB is granted a 4-year stay to conduct Environmental Impact
Report (EIR).

1990: The Caltrout II water license challenge lawsuit is filed.

1991: The SWRCB is ordered to keep lake levels at 6,377 feet.

1990-94: The Restoration Technical Committee (consisting of all parties)

meets to oversee interim fishery habitat restoration programs.

1994: The SWRCB issues its landmark decision (1631) ordering lake

levels to 6,392 feet and allowing Los Angeles to divert up to one-
third of its previous amounts once the desired lake level has been
achieved.

1997: The SWRCB holds hearings on the Department of Water and

Power’s (DWP) proposed lake restoration plans. Hearings are
halted after one month when all parties agree to most of the plan’s
measures.

1998: The SWRCB orders the implementation of stream and waterfowl

restoration measures in the Mono Basin.

The Mono Lake Case

Background

The City of Los Angeles, through the Department of Water and Power,
began to divert water from the Mono Basin in 1941 pursuant to Water Rights
License Nos. 10191 and 10192. Between 1941 and the early 1980s, Mono
Lake water levels declined over 40 feet and water levels decreased in the four
streams emptying into Mono Lake. These changes in the availability of water
caused changes in the landscape and in the species that relied on the lake,
streams and surrounding environment.

The Mono Lake case is marked by a long history of lawsuits between en-
vironmental groups and the City of Los Angeles over the issue of restoring
Mono Lake and its habitat. Legal precedents were set through a series of law-
suits brought by the Audubon Society and California Trout that established
protections for public trust resources and to restore fisheries. Mono Lake wa-
ter rights cases were consolidated in the El Dorado Superior Court. In Deci-
sion 1631, the El Dorado Superior Court addressed the task it was delegated
by the Court of Appeals in the California Trout case by setting and overseeing
interim instream flows until the State Water Resources Control Board
(SWRCB) completed the process.

The Audubon Society, Mono Lake Committee, Friends of the Earth and
four Mono Basin landowners filed an action against the City of Los Angeles
in 1979 to force it to allow more water to flow into Mono Lake. These groups
argued that the diversions were damaging the public trust values of the waters
that had previously flown into Mono Lake. The California Supreme Court in
1983 followed Marks v. Whitney 3 by stating that the ecological and recrea-
tional values the parties sought to protect were among the purposes of the
public trust doctrine. 4

Two separate actions were filed against the City of Los Angeles in the mid
1980s by Dahlgren and the Mono Lake Committee after heavy rains caused
dams to spill over into Rush and lower Lee Vining Creeks. These actions
sought to protect the fish and water that spilled into these creeks. In 1985 and
1987, the Mono County Superior Court ordered the DWP to release flows for
fish in the creeks. 5

California Trout, Inc., the Audubon Society, and the Mono Lake Commit-
tee filed suit against the SWRCB in 1985 (CalTrout I). These plaintiffs as-
serted that the SWRCB violated Section 5946 of the California Fish and
Game Code when it issued the 1974 water right licenses that permitted the
City of Los Angeles to appropriate all water in the four streams flowing into
Mono Lake. They argued that the licenses should be rescinded because they
did not include provisions for bypasses to protect fisheries in the four diverted
streams. In its decision, the California Court of Appeals outlined the legisla-
tive intent of the Fish and Game Code to prevent streams from drying up, as
had happened in the Owens River. They directed the SWRCB to amend the

Chapter Four

city’s licenses to require sufficient releases, or a bypass, that would protect
fisheries. 6

Those same plaintiffs filed a second action in 1989 to challenge the modi-
fications in the DWP’s water licenses. They sought permanent instream flows
for the four streams, as well as interim instream flows until the permanent
flows could be set. The Court of Appeals directed the trial court to set interim
flows while the SWRCB began its process for a long-term solution. 7 This de-
cision required the DWP to “release sufficient water into the streams from its
dams to reestablish and maintain the fisheries which existed in them prior to
its diversion.’’ 8

These five cases were consolidated in 1989 in the El Dorado County Supe-
rior Court as the Mono Lake Water Rights Cases. In June 1990, Judge Ter-
rence Finney entered a preliminary injunction establishing interim flows in
the four Mono Lake streams (Cal Trout I and Cal Trout II). In April 1991,
Judge Finney issued another preliminary injunction that required the DWP to
release sufficient flows to maintain the Mono Lake water level at 6,377 feet. 9
These injunctions were renewed and all further judicial proceedings were
stayed while the SWRCB began the process that culminated in Decision
1631. 10

I. CRITERIA: OUTCOME REACHED

A. Unanimity or Consensus

Decision Unanimous. The State Water Resources Control Board
(SWRCB) issued Decision 1631 on September 28, 1994. It used 43 days of
testimony from the evidentiary hearings held in 1993-1994 and the Mono Ba-
sin water rights Environmental Impact Report (EIR) as the basis for its deci-
sion." Though DWP’s manager of Mono Basin studies expressed disap-
pointment with the decision, DWP’s Commission President promised they
would not appeal. 12 DWP’s General Manager expressed concern about re-
placement water, but also a willingness to move forward after years of litiga-
tion. 13

In a joint press conference with the Mono Lake Committee and the other
parties, Tito stated, “The time has come to accept the state’s judgment and
move on, to work constructively to establish reliable supplies to replace the
water that is being dedicated to preserve the Mono Basin environment.” 14
Other Los Angeles officials viewed the decision as, “a conservation-minded
step toward peaceful resolution of water conflicts.” 15

The Mono Lake Case

B. Verifiable Terms

The written agreement is available publicly on a website 16 and in numer-
ous libraries. 17 All five SWRCB board members voted to adopt the decision.

The SWRCB order sets a goal for the level of Mono Lake at 6,392 feet
above sea level with varying diversions permitted as the lake level rises. The
order also includes a provision for the state to re-examine the situation should
the lake level not reach this goal by 2014. It sets minimum flows for all four
streams emptying into Mono Lake during wet/normal/dry years, and it re-
quires the DWP to prepare plans to restore stream and waterfowl habitat in the
Mono Basin. 18 It requires continuous monitoring above and below diversion
points as well as self-reporting when flows are not met and it states that the
Mono Lake water level will be measured annually on April 1 . It also regulates
flows in the Owens River and coordinates these discharges with Grant Lake
operations and management. The order requires the DWP to conduct a cul-
tural resources inventory and to prepare a Cultural Resources Treatment Plan
to assess and mitigate impacts to resources as the streams and the lake are re-
watered. The decision also suspends grazing for a minimum of ten years, with
future grazing subject to SWRCB approval. 19

Terms of the proposed SWRCB order appeared in California newspa-
pers. 20 Major newspapers around the United States and throughout California
publicized the agreement. 21 Parties to the agreement were satisfied with the
terms of the water diversions, though the DWP still needed to work out the
details of plans to restore Mono Basin fisheries and waterfowl habitat. 22 An
editorial appealing in the Los Angeles Times suggested that the DWP thought
the state plan went too far, but would not dispute the decision. It would, how-
ever, dispute the restoration plans as “overkill.” 23

C. Public Acknowledgement

The Mono Lake Committee, National Audubon Society, California Trout,
State Lands Commission, Department of Parks and Recreation, U.S. Forest
Service, and U.S. Bureau of Reclamation joined the DWP’s Commission
President and General Manager in a Sacramento Press Conference to an-
nounce the no-appeal agreement. 24

D. Ratification

The California State Water Resources Control Board issued the decision.
The DWP, Mono Lake Committee and other interested parties participated in
both the evidentiary healings and the California Environmental Quality Act
(CEQA) process that produced the EIR and they were active participants in
the SWRCB process that produced the decision.

Chapter Four

The El Dorado Superior Court exercised jurisdiction over the Mono Lake
Water Rights Cases while the SWRCB conducted its process to amend Los
Angeles’ water rights licenses. 25

II. CRITERIA: PROCESS QUALITY

A. Procedurally Just

Martha Davis, the former Executive Director of the Mono Lake Commit-
tee, described the SWRCB process as very thorough and thoughtful. She
noted that three years were spent preparing the EIR and public hearings
around the state provided opportunities for public testimony. 26

B. Procedurally Accessible and Inclusive

The public had numerous formal opportunities to provide input into the
development and to comment on the environmental impact report and the evi-
dentiary hearings.

1. Public Notice

The SWRCB issued a Notice of Preparation of an EIR in January 1990
and sent it to over 500 parties. 27 It was also widely published in newspapers.
The SWRCB and City of Los Angeles, along with representatives from Mono
County, California Trout, Inc., the U.S. Forest Service, Department of Fish &
Game, National Audubon Society, and the Mono Lake Committee, reviewed
proposals to prepare the EIR and selected the consultant who prepared the
document. 28

The SWRCB circulated a Draft EIR for public comment in May 1993 that
proposed seven alternatives, including a no-project and no-diversion alterna-
tive and five alternatives for varying Mono Lake levels. 29 In addition to 74
letters submitted during the public comment period, it received over 4,000
letters expressing support for the protection of Mono Lake.

2. Public Participation

Opportunities to provide input into the preparation of the EIR were nu-
merous. 30 A September 1989 public hearing provided the public with oppor-
tunities to comment on the scope of the SWRCB review of the water rights
licenses, public trust uses of Mono Basin water and other beneficial uses of
water diverted from the basin.

The Mono Lake Case

Five technical advisory groups were formed in October 1989 and included
participants from federal, state, and local governments, environmental groups,
colleges and universities, private consultants, and members of the public.
These parties helped identify issues the EIR should address as well as sources
of information. 31

Evidentiary healings were held between October 20, 1993 and February
18, 1994 in Sacramento, California. One day was set aside for hearings in Lee
Vining to take the testimony of Mono Basin residents. There were over 40
days of hearings, 125 witnesses and more than 1000 exhibits entered into evi-
dence. 32

Parties that participated in the evidentiary healings included federal, state,
and local agencies, environmental groups, and consultants representing local
residents. 33

In each of the three healings held in Los Angeles, 34 Mammoth Lakes 35 and
Sacramento 36 to accept non-evidentiary policy statements, the public, gov-
ernment agencies, environmental organizations, legislators, and Governor
Pete Wilson expressed support for protecting Mono Lake and restoring it to a
lake level of 6390 feet or higher. 37 A few comments in Los Angeles expressed
concern about the DWP’s ability to provide a reliable water supply. The
Mono Lake Committee Associate Director Ilene Mandelbaum commented
following the Sacramento hearing that, “never before has the meaning of
‘public trust’ been so eloquently stated than at these public hearings. While
the evidentiary hearings are extremely important to the outcome of the
Board’s decision, there is nothing more compelling than the voices of the pub-
lic speaking out for Mono Lake’s protection.” 38

The Draft Environmental Impact Report (DEIR) included several survey
instruments, which covered two broad categories: recreation and economics.
The DEIR evaluated the regional economic importance of recreation and tour-
ism in a number of ways. It surveyed visitors and their spending patterns at
five locations: Mono Lake, Lower Reaches of the Mono Lake Tributaries,
Grant Lake Reservoir, Lake Crowley Reservoir and the Upper Owens River.
It then used this data to evaluate the economic impacts of the proposed Mono
Lake level alternatives over a 20-year period. 39 It also used contingent valua-
tion methods in surveys at Mono Lake, Lower Reaches of the Mono Lake
Tributaries, Grant Lake Reservoir and Lake Crowley Reservoir to estimate the
willingness of users to pay over and above the current costs for visiting these
areas.

Another survey of 600 California households used contingent valuation
methods to estimate the public’s willingness to pay for the benefits of three
different Mono Lake levels. 40 Commentators on the DEIR raised several con-
cerns over the method of the household survey. First, the lake levels in the
survey did not correspond with the alternative lake levels and suggested in-
consistent resource conditions. Secondly, black and Hispanic households were

Chapter Four

under-represented in the survey. Third, statistical confidence levels were lack-
ing for estimates of preservation values and differences in those values. And
finally, the estimates of willingness to pay for future years should have been
discounted. The SWRCB responded to each of these comments in turn. 41

3. Public Access to Technical and Substantive Information on Issues

The SWRCB -Division of Water Rights provided a copy of the agency’s
mailing list for the Mono Lake project. It contains names and addresses of
approximately 500 organizations, agencies, universities, elected officials,
newspapers and private citizens. The newspapers included, the Mammoth
Lake Review Herald, the Mono Herald, Bridgeport Chronicle -Union, and the
Tahoe Daily Tribune, as well as United Press International. 42 SWRCB staff
also noted that notices and documents were available in public libraries and
that a public relations group (that has since disbanded) prepared various me-
dia spots. Copies of this group’s files were not available. 43

4. Public Education on Scientific and Technical Issues

The Mono Lake Committee has extensive teaching and training materials
designed to inform the public about watershed issues and other preservation
issues linked to the Mono Lake Basin. Some of the MLC’s programs include
walking tours, seminars, classroom excursions for children, and sponsored or
hosted research programs on Mono Lake’s wildlife and environment. 44 The
MLC newsletter has been a steady source of technical and political informa-
tion regarding the lake basin and efforts to restore it to its pre-diversion state.
The MLC also staffs a Los Angeles office that provides direct support to the
community, and participates in the Los Angeles Water Conservation Council
(LAWCC). This author did not find any information regarding educational
activities by other stakeholders.

C. Reasonable Process Costs

A Los Angeles Times article in 1991 estimated DWP litigation costs for
Mono Lake at $7 million dollars. 45 In 1992, the estimates for litigation had
risen to $12 million dollars. 46 A more recent article placed the DWP’s costs at
$15 million, with about half going to scientific studies, and the rest toward
legal fees and award fees to its opponents. Kenneth Downey, Assistant City
Attorney for Los Angeles who had been with the case since 1979, found the
costs “exorbitant.” He viewed paying opponent fees as, “equivalent to build-
ing your own scaffold for the hanging.” This article noted that the attorneys
for both sides agreed that mounting legal fees influenced the city’s decision to
“retreat.” 47

The Mono Lake Case

Morrison & Foerster provided $250,000 in pro bono legal fees to the
Mono Lake Committee and National Audubon Society. Their legal team in-
cluded three attorneys: Patrick Flinn, Bruce Dodge and Bryan Wilson. This
team estimated that the pro bono legal fees were used up before 1980. The
firm agreed to take 50 percent of its regular fees since then (up to 1991) in
order to stay with the case. All together, the Mono Lake Committee estimated
that the DWP outspent it on legal fees, five-to-one. Moreover, technical ex-
perts on Mono Lake provided testimony for free and the Mono Lake Commit-
tee membership provided donations in response to emergency legal appeals. 48

The SWRCB funded three persons per year of the Mono Lake process, ac-
cording to staff. This meant that two environmental specialists and one engi-
neer worked full-time on the project. A fourth person provided legal support,
though not full-time. This information was summarized in correspondence
rather than through provision of department records. 49

III. CRITERIA: OUTCOME QUALITY
A. Cost Effectiveness

1. Summary of Cost-Sharing Arrangements

The costs of implementing the agreement are likely to be borne primarily
by the City of Los Angeles as it develops alternative sources of water. These
costs have been supported through public monies made available from the
state and federal government, and through grant-seeking assistance from the
MLC. While there does not appeal - to be any explicit intent or principles that
guided how the parties planned to share costs of implementation, the record
contains numerous instances of group efforts to obtain funding to implement
the agreement. MLC participated in the efforts to raise state and federal funds
for Los Angeles to develop water supply programs. Among these funds are:
$36 million from the state legislature to develop water reclamation and con-
servation facilities, monies from the federal government to create 120,000 ac-
ft per year of reclaimed water through project development, and $10 million
to support water reclamation and conservation. New facilities and conserva-
tion supported through these state and federal funds are expected to replace an
estimated 141,250 ac-ft. Other efforts include developing water markets
through conservation-pricing strategies, and developing and implementing
best management practices expected to save 700,000 ac-ft of water annually. 50
Since the decision, DWP has committed additional staff and funds for conser-
vation, water recycling, and groundwater management. 51 Among DWP’s re-
cently adopted resolutions were approximately $ 1 million in additional funds

Chapter Four

to continue monitoring waterfowl, fish populations, and limnology of the
lake. 52

2. Costs to Parties Who Participated in Process

The DWP’s costs have steadily risen in its efforts to maintain its water
rights licenses. In 1989, the DWP estimated it would cost about $15 million
dollars to replace water and energy supplies that were lost when El Dorado
County Judge Terrence Finney ordered it to halt all diversions from the Mono
Basin. 5 ’ The DWP has increased funding to monitor waterfowl, fish popula-
tions, and the limnology of the lake, and has committed additional staff to
oversee and support these activities.

3. Costs Borne by Taxpayers

According to a 1994 article in the Sacramento Bee, Los Angeles residents
had been paying $38 million a year to replace water lost to the 1989 court in-
junction, with expectations for these costs to rise over time. The State of Cali-
fornia is providing $36 million for reclamation and conservation projects, and
federal taxpayers in 1994 provided another $5 million for these facilities. 54

4. Costs Borne by Others

In its closing brief in the SWRCB process, the Mono Lake Committee
used figures derived from its and Cal Trout’s model to estimate costs to Los
Angeles ratepayers. This model suggested that fulfilling a 6,390-foot lake
level would cost ratepayers less than one percent, or about $0.16, per month.
Setting a lake level goal of 6,405 feet would raise that cost by a penny. 55

B. Perceived Economic Efficiency

Economic efficiency was a consideration for both DWP and MLC in terms
of evaluating the costs of replacement water versus the benefits gained by re-
storing Mono Lake and its surrounding ecosystem. State and federal funding
of up to $48 million for LA projects and local water rebates for customers
who install water conservation devices were integral to crafting an agreement
that was acceptable to both parties. 56 MLC’s primary goals in its efforts to
restore Mono Lake to its pre-diversion levels (environmental restoration and
conservation) were evident, however, in its closing briefs when it emphasized
the overriding benefits of restoring Mono Lake versus a projected increase of
less than one percent per month to Los Angeles ratepayers. 57

The Mono Lake Case

C. Financial Feasibility/Sustainability

The costs of implementing Decision 1631 are addressed in a number of
ways. The decision evaluates costs in terms of the beneficial uses provided by
the water the DWP diverts. The decision focuses on impacts in quantity and
quality to municipal water supplies. Efforts have been made to meet the short-
falls imposed by the agreement through funds provided by the State of Cali-
fornia and the federal government, conservation, and increasing supplies from
other sources.

Legislation at the state and federal level provided the DWP with flexibility
in developing alternative water supplies. The California Legislature (Assem-
bly Bill 444) provided $60 million in funds to develop new sources of water
for Los Angeles. 58 The legislation included an important incentive: in order to
access the funds, the DWP had to reach an out-of-court agreement with envi-
ronmental groups on ways to save the lake. The Environmental Defense Lund
lent its assistance in developing the legislation and potential alternatives. 59
After four years of tough negotiations that characterized the parties as “war-
ring factions with symmetrical paranoia,” 60 the DWP agreed to credit Mono
Lake diversions with water supplies developed through AB 444 funds. 61 The
funds, dwindling to $36 million over the four-year period, would go to four
projects: a Los Angeles-based water conservation program, the Sepulveda
Reclamation Project, the East Valley Reclamation Project and the West Basin
Reclamation Project. 62 H.R. 429, the Western Water Bill, provided Central
Valley farmers with opportunities to sell their water rights as well as funds to
develop water reclamation projects. 63 The Bureau of Reclamation announced
funds of $5.3 million (1994) and $8.3 million (1995) to support Los Angeles
water reclamation projects. 64 Taken together, these funds provided the DWP
with opportunities to develop replacement options for water that would stay in
the Mono Basin.

The DWP obtains water from three sources: groundwater, the Los Angeles
Aqueduct (Mono and Owens Basin) and the Metropolitan Water District
(MWD). It relies on the MWD most in dry years when supplies are limited in
the Los Angeles Aqueduct. On average, the DWP purchased 13 percent of its
water from the MWD, which obtains its water from the State Water Project
and the Colorado River. Since 1989, the DWP had been prohibited from
withdrawing water from the Mono Basin in order to maintain a lake level of
6,377 feet. 65 Thus, Los Angeles Aqueduct supplies have not been available.
The DWP also addresses water shortages through 22 water conservation pro-
grams (including tiered water pricing) which save up to 30 percent of water

use.

The effects of the agreement will be felt most by the City of Los Angeles
early on, as diversions are restricted in order to achieve specified lake levels
over time. Los Angeles has facilitated permanent changes in water use

Chapter Four

through conservation, reducing water needs by about 15 percent. The city also
seeks to address future demands through increased groundwater use, contin-
ued water conservation, reclamation and recycling, and the gathering of addi-
tional supplies from the MWD. 67 Because the DWP perceives supplies from
the MWD to be uncertain (given Colorado River uncertainties and Endan-
gered Species Act impacts on the State Water Project), it expects to develop
more expensive alternatives. 68 While water quality from the Mono Basin is
high and provides good dilution of minerals in Owens River water, it was es-
timated that changes in water quality standards might necessitate construction
of a water treatment facility regardless of the Mono Basin diversions. 69

The implementation of Decision 1631 is expected to increase water supply
and power costs to the DWP and its customers. While these costs may appear
to be unfair to Los Angeles and its residents, they tend to offset the years of
internalized costs to fish, wildlife, and residents of Mono Basin in the form of
lost water supplies.

Costs will vary depending on the individual costs of conservation pro-
grams that reduce demand, costs of replacement water, water shortage costs,
and costs of replacement power. Estimates range from $300 per acre-foot for
water conservation programs to $700 per acre-foot for reclamation pro-

grams.

The true costs of replacement water were debated based on the two models
and their inherent assumptions. Some of the assumptions were considered
unrealistic (high water shortage costs will be passed onto Los Angeles resi-
dents), while others were un verifiable (effects of water conservation and pric-
ing). 71 Given these differences, the SWRCB estimated costs based upon evi-
dence in the record. These cost estimates seemed rather high, adopting the
high end of the water cost range and adding an additional twenty percent for
an extra-conservative estimate. 72 Thus, the current prices (1994) of $230 per
acre-foot were estimated to cost $520 per acre-foot in a dry year, $400 per
acre-foot in a normal year, and $370 per acre-foot in a wet year for replace-
ment water. 73

Rather than reiterate its decision, the SWRCB referenced the economic
benefits provided by fishery and public trust resources that a full economic
analysis of the decision would include. It concluded that sufficient water
would be available to meet the municipal needs of Los Angeles while restor-
ing lake levels and fisheries in the Mono Basin, and that neither water supply
nor power costs would make implementation impossible. 74

The City of Los Angeles, the Mono Lake Committee and the Audubon
Society agreed that the costs of replacing power generated by plants on the
Los Angeles Aqueduct would be around $ 125 per acre-foot. Combined costs
for fisheries and public trust resources were estimated at $8.5 million until the
lake level reached 6,391 feet and $5.6 million thereafter. 75 The SWRCB con-

The Mono Lake Case

sidered these costs reasonable, given that Southern California Edison’s rates
adjacent to the DWP service area are twenty percent higher.

D. Cultural Sustainability/Community Self-Determination

Cultural resources can include sites, features, and locations of archeologi-
cal, historical, architectural and ethnohistorical origins. They may also include
ceremonial locations and traditional food gathering areas presently in use. The
DEIR considered inventories of archeological records and conducted a litera-
ture search and field assessment of recorded resources. 76 Additional informa-
tion on cultural resources in the Mono Basin is available in the Draft Envi-
ronmental Impact Statement prepared by the Inyo National Forest in 1988. 77

Before contact with European settlers, the Mono Lake Paiute lived in
Mono Basin while the Owens River Paiute lived in the lower Owens River.
Mono Lake Paiute were known as Kuzedika or “fly larvae eaters.” They
tended to live more informally and move about, as opposed to Owens Paiute
who settled in villages. The Owens Paiute hunted, cultivated two irrigated
crops and gathered other foodstuffs. The Mono Paiute hunted, gathered seeds,
berries, bulbs and grasses, and in the summer collected alkali fly larvae and
Pandora moth larvae. Both groups also fished, collected seeds and hunted
game in the Upper Owens River. In the fall, they collected pine nuts from Jef-
frey pine. The first transitions in their lifestyle occurred when European set-
tlers came to Mono Basin in the late 1800s to mine gold found in the area.
They soon assimilated into the European culture as laborers and traders of
goods. 78

The DEIR notes that Native Americans continue to live and work in the
Mono Basin and have initiated an effort for federal recognition. Today, they
are known as the Mono Lake Indian Community. 79 They continue to use tradi-
tional resources and practice cultural activities, and they raised concerns with
the U.S. Forest Service about maintaining these practices when it prepared its
DEIS for the Mono Basin National Forest Scenic Area. Among the concerns
were access to public lands to hunt deer, conduct rabbit drives, fish, and to
gather traditional foods (kutsuvi, buck berries, willows, wild onions and wa-
terfowl), raw materials for crafts, and herbs for medicinal and ritual pur-
poses. 80 The Mono Lake Indian Community reiterated these concerns in its
comments on the DEIR in addition to raising concerns about water rights
claims that have not been satisfied. 81

Given the richness of cultural resources found in the Mono Basin, particu-
larly in riparian areas, Decision 1631 requires the DWP to develop a Cultural
Resources Treatment Plan. The plan should protect and provide access to re-
sources important to the Mono Basin Native American community, including
areas for traditional uses (if requested), and include provisions for unexpected
discoveries of cultural resources. Moreover, the SWRCB required that a

Chapter Four

monitoring plan be included to ensure effectiveness of the treatments. 82 The
SWRCB pointed out that this was particularly important because of the resto-
ration work in the streams anticipated by the decision. Because these impacts
were difficult to anticipate, the SWRCB decision instead created provisions
for the DWP to act as the resources and physical activities became known.

In many ways, the entire State of California was affected by the decision
because of the interconnected nature of the state “plumbing.” The key com-
munities that were affected included the residents of Mono and Inyo Counties,
California and the Los Angeles DWP service area. Other communities in-
cluded recreational users of the Mono Basin and Inyo National Forest.

Towns within Mono County include Lee Vining, Mono City, June Lake
and Mammoth Lakes. Towns within Inyo County include Bishop, Lone Pine
and Big Pine. Major employment sectors include services, trade and govern-
ment. Trades and services support tourism, the main source of employment.
Mining and agriculture also provide employment, though their contribution to
the local economy is small. 83

Most (79 percent) of the land in Mono County is in publicly owned. 84 The
Mono Basin National Forest Scenic Area includes land around the lake, por-
tions of the four diverted streams and irrigated DWP pastures. 85 Lands used
for agriculture support livestock production and most of this occurs by lease
from the DWP, the U.S. Forest Service or the Bureau of Land Management.
The Mono Sheep Company and Inyo Sheep Company lease land along the
tributaries owned by the DWP.

Mono County regulates land use on private and DWP lands in the Mono
Basin and Upper Owens River. The DEIR noted three pending developments.
In Mono Basin, the Conway Ranch is an approved recreational-residential
development on 880 acres. Another Mono Basin development is the Tioga
Inn, a 120-unit inn with restaurant, gas station, mini-mart, and residential
dwellings. 86 Since the preparation of the DEIR, the Trust for Public Land has
purchased Conway Ranch. It will eventually transfer the land to Mono County
to use for open space, wetlands mitigation banking, fish rearing facilities and
other preservation. 87

The DWP, the federal government and private parties own land in the Up-
per Owens River. There are four private ranches within the area considered in
the DEIR. 88 These ranches include the Owens River Ranch, John Arcularius
Ranch (including a proposed expansion), Howard Arcularius Ranch, and Inaja
Land Company. 89

The DEIR predicted reductions in forage production, and benefits to vege-
tation and wildlife along diverted tributary streams for all target lake level
alternatives. Insignificant countywide economic impacts were expected.
However, the potential development of rural properties raised questions of
significant growth-inducing impacts. 90

The Mono Lake Case

The DEIR noted that the DWP would terminate irrigation releases from
Gibbs, Lee Vining, Walker and Parker Creeks to achieve a 6,390-foot lake
level. 91 This change was predicted to affect the operations of the Mono and
Inyo Sheep Companies. It would require the companies to either reduce their
sheep herds by half or find summer forage elsewhere. 92 Under the same
6,390-foot lake level alternative, overall recreation use and benefits would
increase, with opportunities increasing around Mono Lake and decreasing
around Lake Crowley and Grant Lake. The DEIR predicted increased annual
benefits of $2.7 million. 93 While achieving the 6,390-foot lake level would
result in decreases in agricultural production, it would be offset by increases
in recreational spending. The overall regional economy would increase. 94

Information on the differences in socioeconomic indicators was not readily
available, although the DEIR did reflect anticipated changes in employment
and personal income upon implementing each proposed alternative. Personal
income was expected to increase an average of $130,500 annually, while em-
ployment would decrease by 7.3 FTEjobs. 95

E. Environmental Sustainability

All the various factors noted under this criterion were considered in the le-
gal framework that guided the development of Decision 1631. . The CEQA
process, for instance, required considering the environmental impacts of
modifying Los Angeles’ permitted water rights. Among the review factors
included in the CEQA process and in developing modified permits were the
effects of drought, natural resources committed (water for streams and Mono
Lake), projected resource use over time (water and power), and environmental
impacts including endangered species. Moreover, environmental agencies and
interest groups participated in developing the agreement that produced the
decision. Details of specific issues considered in developing Decision 1631
follow below. Decision 1631 considers instream flows necessary to re-
establish and maintain fisheries to pre-diversion conditions, measures to pro-
vide periodic channel maintenance and flushing and other measures that
would facilitate restoration of the fisheries. 96 Each of the four creeks (Lee
Vining, Walker, Parker and Rush) were considered in turn and the decision
generally incorporated Department of Pish and Game recommendations for
streamflows during dry, normal and wet hydrologic years. 97 This was an area
where there were differing views on the technical approaches used to establish
flows, particularly in the models used. 98

Other public trust resources and beneficial uses of water considered in De-
cision 1631 included birds and other wildlife in the Mono Basin, organisms in
Mono Lake that provide food sources for birds, riparian vegetation, wet-
land/meadow habitat, air quality, visual and recreational resources and water
quality. 99 Lor each of these resources the decision considered pre- and post-

Chapter Four

diversion conditions and the measures that would facilitate restoration to con-
ditions most protective and feasible in relation to diversions, past practices,
and evolving systems.

Wildlife considerations took into account the abundant former bird num-
bers (waterfowl) that used Mono Lake as a major stop-over during migration
(eared grebes, red-necked phalaropes, and Wilson’s phalaropes) and as a nest-
ing area (California gull, Caspian terns). It also considered the presence of
sensitive or listed species (Western snowy plover), 100 as well as the water lev-
els necessary to re-establish wetlands and restore waterfowl habitat. 1111 The
decision also referenced the EIR for analyses of impacts to 39 special-status
species in the Mono Basin and concluded that some may benefit from the de-
cision (osprey and bald eagle) and none are expected to suffer adverse im-
pacts from the lake levels and streamflows the decision establishes. 102

Air quality, water quality and visual and recreational resource considera-
tions include the fact that the Mono Basin is designated as a PM jq (inhalable
fine particles < 10 microns) non-attainment area pursuant to the Clean Air
Act, 103 and a National Forest Scenic Area pursuant to the California Wilder-
ness Act. 104 In addition. Mono Lake is a California state reserve 105 with its
water quality protected by the federal anti-degradation policy pursuant to the
federal Clean Water Act. 106

The decision concluded that the instream flows recommended in the four
creeks will cause the water level in Mono Lake to reach 6,390 feet in 29 to 44
years and will sustain a water level somewhere between 6,388 and 6,390 feet
upon reaching the desired 6,391 feet in fifty years. Moreover, it concluded
that an average lake level of 6,392 feet would protect public trust resources.
These include air quality in the Mono Basin, water quality in Mono Lake,
Mono Lake brine shrimp and brine fly food sources for migratory birds and
secure nesting habitat. It will also provide easily accessible recreation to the
Mono Lake Tufa State Reserve. 107

Depending on the computer modeling approach (“rolling average” versus
repeat 1940 to 1989 hydrology), the decision estimated that Mono Lake
would reach a water level of 6,390 feet in approximately 18 to 28 years and
that in two more years the water level would reach 6,392 feet. Given the limi-
tations in modeling and the differences that may occur from one hydrologic
year to the next, the SWRCB reserved the option to adjust diversion criteria
should actual conditions vary significantly from those assumed in establishing
instream flows. 108

F. Clarity of Outcome

The Mono Lake Committee generously lent its newspaper clip files for
this review. Articles in these files revealed overwhelming public support for
the decision. However, despite the decision that brought a long and expensive

The Mono Lake Case

legal battle to a close, one author speculated that future skirmishes were
likely. 109 The DWP’s Hasencamp in an interview with the Review-Herald saw
the decision as a turning point, “the time to end arguing and move on.” When
asked about his previously expressed disappointment he replied, “I don’t feel
that that level of protection is necessary, but again the time for arguing is
through.” 110 Mary Scoonover, the California Deputy Attorney representing the
State Lands Commission, viewed the restoration planning as the least specific
and therefore subject to a lot of future work. She expressed hope for coopera-
tion among the parties. 1 1 1

The SWRCB’s Decision 1631 is available on the Mono Lake Committee’s
website and is 105 pages. 112 This analysis used that copy extensively. The de-
cision is also available in the University of California library system and is
212 pages in length.

The process of setting a baseline condition was both complex and conten-
tious. The DEIR and the Final Environmental Impact Report (FEIR) explain
how the SWRCB set a point-of-reference for analysis. The DEIR used two
points -of-reference to compare the impacts of the proposed project alterna-
tives. 113 It compared the impacts of the proposed projects to the Mono Lake
water level and streamflows before the August 1989 injunction that prevented
diversions. The surface lake level elevation in 1989 was 6,376.3 feet. A point-
of-reference scenario was used to approximate water and power supply ex-
ports because 1989 was a dry year. The goal of this adjustment was to repre-
sent average water supply and power production levels for later impact analy-
sis. A second point-of-reference, the level in 1941 before diversions had
commenced, was used to evaluate the cumulative impacts of the proposed
project alternatives. The lake level elevation when the DWP began diverting
water from the streams was 6,417 feet. The SWRCB in the FEIR stated that
the use of these two levels would provide the widest comparison and the full-
est disclosure of impacts possible. 114

All resources discussed in the decision note pre-1941 diversion conditions
(as noted in previous sections) and acknowledge the difficulties in finding
detailed historical data.

Decision 1631 sets Mono Lake elevation levels and allows for diversions
as interim levels are achieved. While there was not wholehearted agreement
with the lake levels set, 113 this review did not identify any variance or confu-
sion on these ultimate lake levels.

G. Feasibility/Realism

1. Legal Feasibility

The SWRCB decision is in direct response to litigation establishing the
protection of public trust resources and fisheries.

Chapter Four

2. Political Feasibility

State and federal legislators as well as California’s governor supported the
decision. The legislators that provided statements of support for Mono Lake
protections included State Senators Patrick Johnston (formerly representing
Mono County), Frank Hill, Mike Thompson, Dan McCorquodale, Quentin
Kopp, Nick Petris, and Milton Marks and Assemblymembers Richard Katz,
Byron Sher, and Jackie Spier. U.S. Representative Norman Mineta also pro-
vided a statement of support, as did local politicians. The mayor of Mammoth
Lake and Mono County Supervisors and Los Angeles City Council members
lent their support for protections as well. 116

The SWCRB issued Decision 1631 in response to directives from the El
Dorado County Superior Court. The order within the decision was not condi-
tioned upon any needed legislation, although funds provided by the California
and federal legislature did facilitate reaching an agreement.

The California State legislature specifically appropriated $60 million in
funds to protect Mono Lake. 117 AB 444, sponsored by Assemblyman Phil
Isenberg, Assemblymen Bill Baker and Assemblyman Richard Katz, made
funds available to the City of Los Angeles to resolve the dispute over Mono
Lake. The money was available on a matching basis to develop water recla-
mation and conservation projects. Though it took the City of Los Angeles four
years to agree with the Mono Lake Committee on how to use the money, poli-
ticians supported developing solutions through the use of AB 444 funds. 11S

3. Scientific and Technical Feasibility

This sub-criterion focuses on parties’ behavior and willingness to follow
through (based on personnel and resources), supply resource or technology
(scientific/technical assumptions) and make financial commitments. None of
these factors apply to Decision 1631. The parties a nnounced their willingness
to abide by the decision when they issued a No-Appeal statement. 117 The re-
sources and technology are available to implement the solution (see environ-
mental and economic sustainability), and state and federal governments have
already allocated funds to the project.

Governor Wilson signed AB 444 on September 19, 1994. 120 The legisla-
ture allocated the first $9 million allotment of the $36 million state funds in
June of 1994. 121 The Bureau of Reclamation provided the first payment of a
grant to the DWP to fund water reclamation projects in 1995. The East Valley
Water Reclamation Project, scheduled to begin operating in 1998, will ulti-
mately provide 35,000 acre-feet of recycled water. 122 Despite these financial
commitments, Bill Hasencamp, DWP Manager of Mono Basin studies re-
minded Jason Montiel of the Review-Herald that AB 444 funds were match-
ing funds, and the DWP would still have to share the costs of building recla-

The Mono Lake Case

mation facilities. 123 Given these comments, this may be an area to watch over
time.

In the wake of the decision, the DWP continued to raise concerns about its
ability to replace waters that would have come from the Mono Basin. This
issue is one to watch as well. Metropolitan Los Angeles citizens did not view
replacement water as a problem and believe there is plenty of water avail-
able. 124 Whether the DWP is using this issue for strategic reasons or because
of real shortages is not fully clear.

Given that all parties to the agreement announced a “No-Appeal” state-
ment, one might assume they had justified the agreement to their constituen-
cies.

H. Public Acceptability

Environmentalists, the public, resource and regulatory agencies, legislators
and the Governor support the SWRCB decision to restore instream flows to
Lee Vining, Walker, Parker and Rush Creeks and Mono Lake water levels
that were lost when Los Angeles began diverting water from these creeks in
1941. This decision outlines the details of a plan to amend water right li-
censes, restore public trust resources and satisfies the California Supreme
Court’s objective of taking “a new and objective look at the water resources in
the Mono Basin.” 125

In many ways, there is a sense that wrongs will be righted. Eldon Vestal,
whose yellowed field notes from his days as a Fish & Game biologist pro-
vided critical evidence in the case, captured this sentiment when he said, “The
city of Los Angeles was a tremendous political power over the years, and
challenging it seemed like grabbing for a bite out of the moon.” 126 David
Carle, Park Ranger for Mono Lake Tufa State Reserve, echoed Vestal’s jubi-
lation, “Yee-haw! I don’t care what the sober-sided alter ego says, it’s time to
celebrate! Party! Sing songs and dance ajig! Long live Mono Lake!” 127 Marc
Del Piero, a member of the Water Resources Control Board said, “Today we
are correcting a mistake and putting in place an order that protects the public
trust.” 128

Support for the decision was clear among members of the Mono Basin
community when asked what they thought about it at Mark Twain Day. Bud
Stickles, Lee Vining, said, “It’s about time they did something. L.A. has raped
this area long enough.” Betty Clayton, June Lake, added, “I think it’s great. I
saw it on T.V. It was the greatest thing.” Michael Wells, Lee Vining, recog-
nized Mother Nature’s hand in the decision; “I think it’s a long time coming
and I hope that Mother Nature is good to us this year' so it will raise the level
to the prescribed amount. It’s up to Mother Nature now.” 129

Dennis Martin, supervisor of the Inyo National Forest, had the sense that
everyone, except perhaps the DWP, “felt good about [the decision].” 130 Den-

Chapter Four

nis Tito, DWP Commission President, promised, “We are here to accept the
state’s decision and to work with the Mono Lake Committee and other envi-
ronmental groups to replace the lost water that will be used for the Mono Ba-
sin. We’re happy, actually, that the conclusion is now behind us. We can now
move ahead to the future. We have worked not only on the reclamation pro-
jects but also on the restoration of the streams in the Mono Basin.” 131

California Senator Tim Leslie’s support through AB 444 funds for recla-
mation and conservation projects observed, “I think we can declare the battle
of Mono Lake over. . . I think that this reclamation project was a catalyst that
helped it all come together. That wasn’t the whole agreement. But things
weren’t happening until that reclamation project worked out.” 132

California Governor Wilson said, “The plan approved today assures pro-
tection of Mono Lake’s extraordinary environmental values, while also pro-
viding flexibility for the renewed diversions to Los Angeles as the lake is re-
stored to healthier levels.” 133

IV. CRITERIA: RELATIONSHIP OF PARTIES TO
OUTCOME

A. Satisfaction/Fairness

While there was no evidence of statements of unfairness, several DWP of-
ficials expressed personal disappointment. The DWP’s manager of Mono Ba-
sin studies expressed some disappointment with the decision, but conceded it
was time to focus on what is best for Mono Basin and Los Angeles. 134 Coun-
sel for the DWP also expressed disappointment, “On a personal level I’m a
little disappointed, but the department has stated that it accepts the decision
and we will implement the decision.” 135 One writer detected a trace of bitter-
ness in a statement by an Assistant City Attorney for Los Angeles when he
said, “We appropriated (water) in accordance with the law of California, and
we appropriated water in accordance with the Constitution, but somehow it
wasn’t good enough. It’s just amazing to me.” 136 There was also occasional
evidence of differences of opinion on how to set baselines and model impacts.

There is no evidence that parties at the table refused to sign-on to the deci-
sion. On the contrary, the joint press conference announcing that no parties
intended to appeal the decision conveys agreement among the parties.

A continuing theme in the DWP’s reaction to Decision 1631 is its con-
cerns for replacing Mono Basin waters. Since 1989, when El Dorado Superior
Court Judge Finney issued a preliminary injunction preventing diversions, the
DWP has had to obtain Mono Basin volumes of up to 85,000 acre-feet from
other sources. Apparently, as of 1998, it had been able to secure these alter-
nate sources at the cost of $38 million per year.

The Mono Lake Case

B. Compliance with Outcome Over Time

The Guidebook indicators in this section focus on subsequent litigation
(initiated or threatened), records of regulatory/monitoring organizations, ways
and presence of documents to verify compliance, and internal recordkeeping
of compliance. There is no evidence of subsequent litigation other than a mo-
tion filed by the Mono Lake Committee and the National Audubon Society to
allow the Restoration Technical Committee (RTC) to continue its restoration
works. 137 The RTC had been carrying out interim court-ordered creek restora-
tion since 1990 until the SWRCB issued its decision.

The SWRCB order requires the DWP to keep records of instream flows
above and below points of diversion and to measure the Mono Lake water
level each year on April 1. Moreover, it includes provisions to report in-
stances when the specified flows are not met. 138 Records of monitoring and
compliance used for this review are noted below.

Measuring compliance with the decision, requires among other things, the
monitoring of Mono Lake water levels and the development and implementa-
tion of stream and waterfowl restoration plans.

Mono Lake water levels have risen steadily. In the summer of 1995, the
lake level was 6,376.2 feet above sea level, an increase from 6,374.4 the pre-
vious winter. 139 By fall of 1995, the lake level had risen to 6,377.4 feet above
sea level— a three foot rise from the previous winter. 140 One year later, the lake
level had risen to 6,380.1 feet above sea level. The Mono Lake Committee,
who monitors the lake level, reported a 5.5-foot vertical rise since the
SWRCB decision. They attributed this rise to two years of above-normal run-
off and limited diversions from the four streams. 141 In the fall of 1997, the
Mono Lake Committee reported the Mono Lake level at an elevation of
6,382.4 feet above sea level— 7.8 feet higher since the SWRCB decision. 142 At
the time of this writing in 1998, Northern California has experienced another
exceptionally wet winter and spring runoff, and the Mono Lake water level
has no doubt continued to rise. Most recent estimates are that the lake level
will reach 6,384 feet above sea level by the end of the 1998 summer. 143

In Decision 1631, the SWRCB charged the DWP with preparing stream
and waterfowl restoration plans as well as a plan for managing Grant Lake
operations. These documents were due to the Water Board in November 1995,
though requests to extend the deadline were already pending in the previous
summer 144 and newsletters from the Mono Lake Committee note an extension
to November 1996. 14 ^ It is not clear from this review when the documents
were actually submitted nor if copies of the plans were obtained despite re-
quests to the Mono Lake Committee, State Water Resources Control Board,
Water Resources Archives Library at the University of California-Berkeley
and Los Angeles Department of Water and Power. According to the SWRCB
Water Rights staff, the Water Resources Control Board will review and issue

Chapter Four

a draft order [on the plans] by the end of July 1998. The SWRCB staff offered
a copy of this document for future project reviews. The Board was expected
to adopt the plans in early September 1998 after taking testimony. 146

The contents of the plans have already raised concerns in the commu-
nity. 147 Questions over what values should take precedence, what point in
time the habitat should be restored, and who should decide are at the heart of
these concerns. The focal point of these questions is a proposal to create wa-
terfowl habitat by restoring Mill Creek with waters from nearby Conway
Ranch. Members of the community feel they were left out of plans that will
sacrifice one creek (Wilson Creek) to restore another (Mill Creek). A member
of a family who has lived in the Mono Basin since the 1870s feels that, “re-
storing a natural creek at the expense of a century of local history is not only
outrageous, it’s unrealistic.” 148 The SWRCB has responded by leading a
group known as the Conway Ranch Evaluation Workgroup (CREW) to con-
sider land use options and alternatives. 149 Questions of implementation, there-
fore, will hinge in part on how the restoration planning process proceeds.

C. Flexibility

This review did not identify any evidence of modifications in the agree-
ment, perhaps because the decision included provisions for SWCRB oversight
and action if, and when, necessary. The decision includes provisions for ad-
justments if hydrology does not reflect the assumptions used in setting in-
stream flows and Mono Lake water levels.

Questions have developed since the agreement about the implementation
of restoration plans. The status of these issues has been discussed in the pre-
vious section on compliance.

D. Stability/Durability

Mechanisms exist to track progress, particularly Mono Lake water levels.
Los Angeles water diversions are modified as particular lake levels are
achieved. The sooner the 6,392-foot level has been achieved; the sooner Los
Angeles will be able to divert water. There are threshold lake levels below
which future diversions are forbidden, 150 and there are contingencies if the
lake level goal has not been achieved before 2014. 151

The DWP, through Decision 1631, is responsible for implementation. The
regulatory, academic, local and environmental community that have partici-
pated in the process since its beginning join the DWP in this effort through
their continuing interests, while the SWRCB has retained oversight. 152

This review did not identify alternate conflict management or resolution
processes. Standard negotiations and a return to the SWRCB appear to be the
backstop processes when problems or conflicts arise.

The Mono Lake Case

Shifting alliances have emerged as the details of the waterfowl and ripar-
ian restoration plans have become known. See the previous section on com-
pliance for more details.

V. CRITERIA: RELATIONSHIP BETWEEN PARTIES
(RELATIONSHIP QUALITY)

A. Reduction in Conflict and Hostility

Public statements from the parties have consistently maintained a profes-
sional tone. If the tone of the conflict was rising or falling, it was not apparent
in statements to the press. Rather, the press characterized the discussions as
contests, or as a forum to right wrongs. Headlines such as, “public trust values
win,” “Mono Lake, environment saved,” “Mono nears water war' victory,”
and “L.A. gives up” support and reinforce an adversarial relationship between
the parties. The press characterized the environment as the victor and at times
recognized the change in the DWP’s strategy. Examples include, “DWP: The
time for arguing has ended,” “Mono’s troubled waters at peace,” “City of An-
gels Makes Peace in Water War's,” “A Welcome Truce,” and “Peace at Mono
Lake.”

B. Improved Relations

The relationship between the parties began as an adversarial one, that is,
through legal actions brought by environmental groups to stop DWP actions.
An important point to bear' in mind is that water rights have always been con-
sidered within the framework of common law. A formal, legal process contin-
ued to frame discussions of the issues throughout the process. One would ex-
pect a written agreement or consent document as the outcome of a formal
process. Thus, the written legal document the SWRCB generated in this case
does not seem unusual given the traditional framing.

Despite the formality of the process, many of the parties spent as much as
16 years together in negotiations. Trust levels were described as fragile 153
early on, which supported the continued use of a structured process. Though
the legal process imposed a more formal framework, it also provided third
party oversight and protection to the plaintiffs that they would not have oth-
erwise had in these actions. Following the Board’s decision, numerous parties
expressed hope for future cooperation.

Chapter Four

C. Cognitive and Affective Shift

A Los Angeles City Councilwoman has facilitated and led changes in the
DWP. Following the Board decision she said, “Some of what you are seeing
is a genuine change in the Department. There has been a change coming.
Even in Los Angeles, there is a strong environmental movement.” She views
herself as responsible for fixing the city’s past environmental problems . 154
The Commissioner of the U.S. Bureau of Reclamation praised the DWP’s
change in attitude; “All parties have come to the realization that many serious
environmental mistakes were made when we constructed the water projects
on which our urban and agricultural sectors now depend .” 155 Others concurred
with the assessment that the parties were “old antagonists” that had “declared
peace .” 156 The former Executive Director of the Mono Lake Committee noted
earlier signs of shifting views. She observed, “for years the DWP portrayed
the fight as a win-lose - if Mono Lake won, L.A. would lose.” She expressed
her hope for change and the promise of compromise so that each party would
get what it needed . 137 Over the years as the parties met to develop a compro-
mise, shifts had occurred though it is not completely clear what brought them
about. Some attribute it to escalating costs , 158 others to changing public val-
ues . 159

D. Ability to Resolve Subsequent Disputes

This review did not identify a lot of information to strongly state whether
problems were handled constructively. Lor instance, following the Board’s
decision, the DWP, the Mono Lake Committee and other parties announced
their intent to work together to implement the SWRCB’s order that required
developing plans for waterfowl and stream restoration and managing Grant
Lake . 160 However, when the SWRCB proposed closing out lawsuits brought
by the Mono Lake Committee, the National Audubon Society and California
Trout, these groups filed briefs requesting continued court jurisdiction until
final restoration plans were approved . 161 While the parties continue to meet to
hammer out details, the discussions appear to focus on technical issues . 162
Changes in relationships seem to be an unintended and indirect benefit from
spending so much time together.

E. Transformation

A new spirit of cooperation at the DWP was noted by a Los Angeles
Councilwoman as a sign of “genuine change in the Department. ” 163 She
added, “We are on our way to a new environmental ethic, a new way of sup-
plying water, [a]nd I hope a new era of California politics .” 164 Others recog-

The Mono Lake Case

nize the precedents set in the Mono Lake case and see it as a model for solv-
ing other water disputes.

VI. CRITERIA: SOCIAL CAPITAL

A. Collective Citizen Capacity

Over the course of the negotiations to reach an agreement on the future of
Mono Lake and since the decision in 1994, the MLC has worked with the
DWP both to secure funds to replace diversions and to expand water conser-
vation programs. During the Mono Lake negotiations the MLC actively par-
ticipated in efforts to secure state funds ($36 million) to build new water sup-
ply facilities - a key issue in developing replacement water. 165 The MLC and
the DWP presently work together in implementing the Ultra-Low Flush Toilet
Program through the Los Angeles Water Conservation Council, a collabora-
tive of Los Angeles community organizations who, in addition to their respec-
tive community interests, promote water conservation and environmental pro-
tection. Among the organizations participating in the LAWCC are Adro Envi-
ronmental (a community development corporation that trains and employs
residents from three LA neighborhoods); Asian American Drug Abuse Pro-
gram (fights drug abuse and runs a treatment program); Calvary Baptist
Homes; Iglesia Poder de Dios (small community church promoting educa-
tional youth trips to Mono Lake); Korean Youth & Community Church (spon-
soring youth trips to Mono Lake); Mothers of East Los Angeles Santa Isabel
(promoting a healthy, united local community and sponsoring youth trips to
Mono Lake); and Watts Labor Community Action Committee (providing
community services and support for residential and community develop-
ment). 166

B. Community Capacity for Decision-Making

The MLC has assisted the DWP in its recent efforts to address community
concerns over Los Angeles’ water supply, water quality and new programs.
The DWP General Manager and the MLC Executive Director were scheduled
to co-lead the first of fifteen water education workshops sponsored by DWP.
These workshops are intended to provide residents and businesses with oppor-
tunities to ask questions and leam more about their water supply. 167

Numerous instances of symposia and conferences also convey the collec-
tive efforts of parties to create forums in which the local and statewide com-
munity can learn more about the Mono Lake “story” and its connection with
legal and ecological systems. Water policy conferences and panels, legal
symposia, and local restoration workshops are examples of efforts that have

Chapter Four

conveyed the Mono Lake decision’s connection to other water policy issues
around the state (such as the Bay-Delta/Cal-Fed process), the significance of
the Public Trust Doctrine, and the state of the Mono Lake stream restora-
tion . 168

The Mono Lake process also provided the motivation to develop similar
collaborative processes to address the specifics of stream restoration efforts.
The Conway Ranch Evaluation Work-groups (CREW) illustrates one such
example. CREW provided a constructive forum for county residents, resource
agencies, and public interest groups to discuss alternatives for the Mill Creek
restoration and describe the creek’s contributions to the Mono Basin and the
lake ecosystem . 169

Evidence that the community has connected with MLC’s efforts to “save”
Mono Lake and developed an understanding of the issues is apparent in the
prize-winning essay written by a young resident of Lee Vining. The essay
recognizes the magnitude and importance of MLC’s efforts by describing
Mono Lake’s connection to plants and wildlife, and the capacity for restora-
tion to provide a focal point for the community in general, and young people
in particular . 170

C. Social System Transformation

The beginnings of a social transformation stemming from the Mono Lake
efforts are suggested in a number of local and wider reaching efforts that fo-
cus on water conservation in the West. DWP’s sponsorship of the Ultra-Low
Llush Toilet Distribution Program, and provision of free low flush toilets pro-
vides one example of assistance and support provided to the Los Angeles
community in general. More far-reaching instances of transformation are evi-
dent in the way Los Angeles and the state of California has approached secur-
ing water supplies for its community. The former MLC executive director
commented that the Mono Lake process provides important lessons in devel-
oping and supporting wiser, more efficient water use in California . 171 The
Bay-Delta efforts in Northern California and the restoration of the Owens
River and Owens lakebed provide two such illustrations.

NOTES

1 Craig Anthony Arnold, and Leigh A Jewell. “Litigations Bounded Effectiveness and the Real
Public Trust Doctrine: The Aftermath of the Mono Lake Case,” 8 Hasting West-Northwest
Journal of Environmental Law and Policy I, (Fall 2001); Brian E. Gray, “The Property
Right in Water,” 9 Hasting West-Northwest Journal of Environmental Law and Policy I.
(Fall 2002); John Hart and Nancy Fouquet, Storm Over Mono: The Mono Lake Battle and
the California Water Future, (Berkeley, CA: University of California Press, 1996).

The Mono Lake Case

Drawn from Political Chronology of Mono Lake [Website], Mono Lake Committee, 2000
[cited June 16 2000], Available from http://www.monolake.org/politicalhistory/potchr.htm.

3 6 Cal. 3d 251, 98 Cal Rptr. 790, 491 P.2d 374.

4 “Mono Lake Decision 1631’" http://monolake.org/politicalhistory/dl631test.html: 4, 5; Cali-

fornia State Water Resources Control Board, Division of Water Rights, Draft Environ-
mental Impact Report for the Review of the Mono Basin Water Rights of the City of Los An-
geles, Appendix R: Legal History of Mono Lake Controversy, May 1993.

5 California State Water Resources Control Board, Division of Water Rights, Draft Environ-

mental Impact Report for the Review of the Mono Basin Water Rights of the City of Los An-
geles, Appendix R: Legal History of Mono Lake Controversy, May 1993.

6 “Mono Lake Decision 1631" http://monolake.org/politicalhistory/dl631test.html: 4, 5.

7 Ibid.

8 California Trout Inc, v. Superior Court (Cal Trout II) 218 Cal. App. 187 [266 Cal. Rprtr.

788].

9 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 4, 5.

10 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 6.

11 “Water Board set lake at 6,392; DWP promises no appeal,” Mono Lake Newsletter 17 (2A):
4, Special Issue 1994; “Mono Lake Decision 1631” http://monolake.org/politicalhistory/
dl631test.html: 8; California State Water Resources Control Board, Division of Water
Rights, Draft and Final Environmental Impact Report for the Review of the Mono Basin
Water Rights ofthe City of Los Angeles, 1993-1994.

12 “Mono Lake Decision 1631” http://monolake.Org/politicalhistory/d 163 ltest.html: 6.

13 Virginia Ellis, “State Sets New Safeguards for Mono Lake,” Los Angeles Times, A3, A15,
September 29, 1994.

14 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 6.

5 Anne Bancroft, “L.A. Gives Up--Mono Lake Finally Saved,” San Francisco Chronicle, Al,
A 17, September 29, 1994.

16 http://monolake.org/politicalhistory/dl631test.html.

17 Melvyl— University of California Library Catalog (http://www.melvyl.ucop.edu)

ls “Highlights of the Water Board Order,” Mono Lake Newsletter 17 (2A): 6-7, Special Issue
1994.

19 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 97-104.

20 Anne Bancroft, “Big Step for Saving Mono Lake,” San Francisco Chronicle Al, September

21, 1994; Maria Cone, “Plan Calls for Refilling of Mono Lake,” Los Angeles Times A3,
A27, September 2 1 , 1994.

21 New York Times, October 3, 1994; The Hartford Courant, November 9, 1994; The Christian

Science Monitor, November 1, 1994; San Francisco Chronicle, September 29, 1994; Los
Angeles Times, September 29, 1994; Santa Rosa Press Democrat, September 29, 1994; Sac-
ramento Bee, September 29, 1994; San Luis Obispo Telegram Tribune, September 28, 1994;
Woodland Hills Daily News, September 29, 1994; San Pedro News Pilot, September 29,
1994; Star News-Pasadena, September 29, 1994; The Herald-Monterey, September 29,
1994; Valley Times-PIeasanton, September 29, 1994; San Jose Mercury News, September
29, 1994; Times Herald-Vallejo, September 29, 1994; Fresno Bee, September 29, 1994; Ap-
peal-Democrat-Marysville, October 3, 1994; Plumas County Reporter, October 5, 1994;
Riverside Press Enterprise, October 5, 1994; Areata Eco News, October 1994; Contra
Costa Times-Walnut Creek, October 3, 1994; Mammoth Times, October 5, 1994.

22 Anne Bancroft, “L.A. Gives Up— Mono Lake Finally Saved,” San Francisco Chronicle, Al,

A 17, September 29, 1994.

23 Editorial, “DWP’s Terrible Case of Mono,” Los Angeles Times, B7, September 24, 1994.

100

Chapter Four

24 San Francisco Chronicle, September 29, 1994; Los Angeles Times, September 29, 1994;
Santa Rosa Press Democrat, September 29, 1994; Sacramento Bee, September 29, 1994;
San Luis Obispo Telegram Tribune, September 28, 1994; Woodland Hills Daily News, Sep-
tember 29, 1994; San Pedro News Pilot, September 29, 1994; Star News-Pasadena, Sep-
tember 29, 1994; The Herald-Monterey, September 29, 1994; Valley Times-Pleasanton,
September 29, 1994; San Jose Mercury News, September 29, 1994; Times Herald- Vallejo,
September 29, 1994; Fresno Bee, September 29, 1994; Appeal-Democrat-Marysville, Octo-
ber 3, 1994; Plumas County Reporter, October 5, 1994; Riverside Press Enterprise, October
5, 1994; Areata Eco News, October 1994; Contra Costa Times-Walnut Creek, October 3,
1994; Mammoth Times, October 5, 1994; Photograph, Mono Lake Newsletter 77(2A): 2,
Special Issue 1994.

25 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 5, 6.

26 Geoffrey McQuilkin, “Martha Davis on Mono Lake,” Mono Lake Newsletter 16(2) (Winter

1994): 1 1 .

27 Walter G. Pettit (State Water Resources Control Board-Division of Water Rights), Notice of

Preparation for the Review of the City of Los Angeles’ Water Rights Licenses, Revised Wa-
ter Quality Control Plan and the Public Trust Issues of the Mono Lake Basin, January 4,
1990.

28 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 7.

29 California State Water Resources Control Board, Division of Water Rights, Draft Environ-
mental Impact Report for the Review of the Mono Basin Water Rights of the City of Los An-
geles 1 (May, 1993): 2-15-24.

30 “Mono Lake Decision 1631”http://monolake.org/politicalhistory/dl631test.html: 7.

31 Jim Canaday (State Water Resources Control Board-Division ofWater Rights), Letter Invit-
ing Participation on Technical Work Groups. November 16, 1989; Jim Canaday (State Wa-
ter Resources Control Board-Division ofWater Rights), Letter Inviting Wildlife, Riparian
Vegetation/Wetlands and Land Use Technical Advisory Group to December 14, 1989 Meet-
ing, December 7, 1989.

32 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 8.

33 Parties included California Air Resources Board, California Department of Fish & Game,
California State Lands Commission, California Department of Parks and Recreation, Cali-
fornia Trout, the City of Los Angeles and the City of Los Angeles Department ofWater and
Power, the Great Basin Unified Air pollution Control District, Haselton Associates, the Na-
tional Aududon Society, Mono Lake Committee, the Sierra Club, The Metropolitan Water
District of Southern California, the United States Fish and Wildlife Service, and the United
States Environmental Protection Agency, “Mono Lake Decision 1631”
http://monolake.Org/politicalhistory/d 1631 test.html: 10.

34 Maria L. LaGanga, “State Backs Effort to Raise Mono Lake Level,” Los Angeles Times A3

A24, October 3, 1993; “Public Hearings to be held by Water Board" Mono Lake Newsletter
16(2) (Fall 1993): 6.

35 “Public Hearings to be held by Water Board" Mono Lake Newsletter 16(2) (Fall 1993): 6.

36 Ibid.

37 Sally Miller, “Water Board Overwhelmed By Statements Favoring Protection of Mono
Lake,” Mono Lake Newsletter 16(2) (Winter, 1994): 4-5.

38 Ibid.

39 California State Water Resources Control Board, Division ofWater Rights, Draft Environ-
mental Impact Report for the Review of the Mono Basin Water Rights of the City of Los An-
geles 2 (May 1993): 3N8-3N1 1.

40 Ibid: 3N 18-19, Appendix X, Economics.

The Mono Lake Case

101

41 California State Water Resources Control Board, Division of Water Rights, Final Environ-
mental Impact Report for the Review of the Mono Basin Water Rights of the City of Los An-
geles 1 (September 1994): 4-144-146.

42 Division ofWater Rights Mailing List File Copy, January 9, 1990.

43 Telephone conversation with Jim Canaday, State Water Resource Control Board-Division of

Water Rights, July 13, 1998.

44 See the MLC website at http://www.monolake.org

45 Robert A. Jones, "Mono Lake: A Test for New Regime,” Los Angeles Times A3, May 8,

1991.

46 Bob Schlichting, “DWP Loses in Court, Again, and Again...,” Mono Lake Newsletter 15(2)

(Fall 1992): 5.

47 Dennis Pfaff, “15-year Court Battle Over Mono Lake Leaves Legacy of Legal Fees,” Re-
corder October 12, 1994; Dennis Pfaff, “It’s Not Over Yet-Controversy Still Swirl Around
Mono Lake Litigation,” Daily Journal 1. 5, October 13, 1994.

48 “Pro Bono Fees and Mono Lake,” Mono Lake Newsletter 14(1) (Summer, 1991): 5.

49 Jim Canaday, E-mail re: Questions, July 20, 1998.

50 http://www.monolake.org/socalwater/altwater.htm.

51 Frances Spivy-Weber, “Water Conservation Statewide is Insurance for Mono Lake,”
(http://www.monolake.org/newletter/98fall/insurance.htm).

32 http://www51adwp.com/whatnew/bbs/board/AC050200.htm.

53 Virginia Ellis, “Judge Halts L.A. Diversion ofWater from Mono Basin,” Los Angeles Times,
11,132, August 23, 1989.

34 “The Price for Mono Lake,” Sacramento Bee, October 5, 1994.

“Committee Files Closing Brief in State Water Board Proceedings,” Mono Lake Committee
16(4) (Spring, 1994): 7.

56 Paul Rogers, “Rising Water, Rising Spirits: Mono Lake on the Brink of a Stunning Rebirth,”
San Jose Mercury News, July 2 1995.

“Committee Files Closing Brief in State Water Board Proceedings,” Mono Lake Committee
16(4) (Spring, 1994): 7.

38 Elliot Diringer and Greg Lucas, “L.A. Is Offered $60 Million To Use Less Mono Lake Wa-
ter,” San Francisco Chronicle 1, September 16, 1989.

59 “California’s Ancient and Unique Mono Lake is Saved,” EDF Letter 26(19) (January 1995):

1, 3.

60 Marla Cone, “DWP Agrees to Take Less Mono Lake Water,” Los Angeles Times Al, De-
cember 14, 1993.

61 Martha Davis, "Reclaimed Water Agreement Underscores Feasibility of Protecting Mono
Lake,” Mono Lake Newsletter 16(4) (Spring, 1994): 10, 11.

62 Ibid.

63 “H.R. 429: The Western Water Bill,” Mono Lake Newsletter 15(3): 6, 7, Winter, 1993.

64 Daniel B. Wood, “Mono Lake Decision Marks Sea of Change in California Water Wars,”
Christian Science Monitor 3, November 1, 1994.

“Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 5, 80.
'Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 81.

66 ,

67 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 82.

68 Ibid.

69 ,

70 ,

“Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 83.
'Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 84.
Ibid.

“Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 85.
Ibid.

102

Chapter Four

74 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 87.

75 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 88, 89.

76 “Mono Lake Decision 1631" http://monolake.org/politicalhistory/dl631test.html: 93.

77 Inyo National Forest, Draft Comprehensive Management Plan for Mono Basin National
Forest Scenic Area 103-107, September 19, 1988.

78 California State Water Resources Control Board, Division of Water Rights, Draft Environ-
mental Impact Reports for the Review of the Mono Basin Water Rights of the City of Los
Angeles 2 (May 1993): 3K-5-6.

79 Ibid: 3K-13.

80 Inyo National Forest, Draft Comprehensive Management Plan for Mono Basin National
Forest Scenic Area 105-106, September 19, 1988.

81 William J. Andrews, "Letter #31 -Comments on Draft EIR” in California State Water Re-
sources Control Board, Division of Water Rights, Final Environmental Impact Report for
the Review of the Mono Basin Water Rights of the City of Los Angeles 2, September 1994.

82 “Mono Lake Decision 1631" http://monolake.org/politicalhistory/dl631test.html: 94.

83 California State Water Resources Control Board, Division of Water Rights, Draft Environ-
mental Impact Report for the Review of the Mono Basin Water Rights of the City of Los An-
geles, 2 (May 1993): 3N-4.

84 Ibid.: 3G-13-14.

85 Ibid.: 3G-24.

86 Ibid.: 3G-26.

87 “Mono Basin Updates” Mono Basin Newsletter 20(4), 21(1) (Spring-Summer 1998): 6.

88 California State Water Resources Control Board, Division of Water Rights, Draft Environ-
mental Impact Report for the Review of the Mono Basin Water Rights of the City of Los An-
geles, 2 (May 1993): 3G-17.

89 Ibid.: Figure 3G-4

90 Ibid.: 3G-33-34.

91 Ibid.:3N-37.

92 Ibid.: 3N-28.

93 Ibid.: 3N-38.

94 Ibid.

95 Ibid, and Table 3N-18.

96 “Mono Lake Decision 1631" http://monolake.org/politicalhistory/dl631test.html: 10. 11.

97 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 17, 22, 26,

37.

98 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 16, 17, 34-

37.

99 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 41.

100 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 49-55.

101 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 59, 60.

102

“Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 61.

103 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 64.

104 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 66.

105 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 67, 68.

106 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 75.

107 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 77, 78.

108 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 79.

109 Bob Schlichting, “DWP Loses in Court, Again, and Again...,” Mono Lake Newsletter 15(2)
(Fall 1992): 5; Dennis Pfaff, "15-year Court Battle Over Mono Lake Leaves Legacy of Le-
gal Fees,” Recorder October 12, 1994.

The Mono Lake Case

103

110 Jason Montiel, "DWP: The Time For Arguing Has Ended,” The Review Herald 22 (76): A 1 ,
A10, October 6, 1994.

111 Jason Montiel. "Public Trust Values Win With Mono Order,” The Review Herald 22 (82):
A 1, A 12, October 30, 1994.

112 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 1-105.
This link has changed to http://www.monobasinresearch.org/images/legal/dl631text.htm.

113 California State Water Resources Control Board, Division of Water Rights, Draft Environ-
mental Impact Report for the Review of the Mono Basin Water Rights of the City of Los An-
geles, 1 (May, 1993): 2-25-28.

4 California State Water Resources Control Board, Division of Water Rights, Final Environ-
mental Impact Report for the Review of the Mono Basin Water Rights of the City of Los An-
geles, 1 (September, 1994): 4-3.

115 Bob Schlichting, “DWP Loses in Court. Again, and Again...,” Mono Lake Newsletter 15(2)
(Fall 1992): 5; Dennis Pfaff, “15-year Court Battle Over Mono Lake Leaves Legacy of Le-
gal Fees,” Recorder October 12, 1994.

Sally Miller, “Water Board Overwhelmed By Statements Favoring Protection of Mono
Lake,” Mono Lake Newsletter 16(2) (Winter, 1994): 5.

117 Martha Davis, "Reclaimed Water Agreement Underscores Feasibility of Protecting Mono
Lake,” Mono Lake Newsletter 16(4) (Spring 1994): 10.

118 Ibid.

119 Jason Montiel, “No Parties Appeal State's Decision on Mono Basin,” Review-Herald, Al,
A8, November 6, 1994.

120 Marla Cone, “Plan Calls for Refilling of Mono Lake,” Los Angeles Times, A3, A27, Sep-
tember 21, 1994.

121 Marla Cone, “Mono Lake Plan Could Slash L.A. Water Supply,” Los Angeles Times, A32,
September 18, 1994; Jason Montiel, “Mono Lake Should Rise to 6,392 Feet, Says State,”
Review-Herald, Al, A 10, September 22, 1994.

122 “Money Flowing for Reclaimed Water,” Mono Lake Newsletter 18(1) (Summer, 1995): 10.

123 Jason Montiel, “DWP: The Time for Arguing is Ended,” The Review-Herald 22 (76): Al,
A 10, October 6, 1994.

124 “Letters to the Times,” Los Angeles Times, October 2, 1994.

125 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 96.

126 Virginia Ellis, “State Sets New Safeguards for Mono Lake,” Los Angeles Times, A3, Sep-
tember 29, 1994.

127 David Carle, “It Ain’t Over Till the Fat Bird Sings” Mammoth Times 14, 43, September 29,
1994.

1-8 Jason Montiel, “Mono Lake, Environment Saved,” Inyo Register 114: Al, A2, September
30, 1994.

129 “What Do you Think?” The Review-Herald, A10, October 6, 1994.

130 Jason Montiel, “USFS: Mono Decision Supports Our Goals,” The Review-Herald 22 (79):
A-l, A-12, October 16, 1994.

131 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 59,60.

132 Jason Montiel, “Leslie: State Money Helped to Secure Mono Basin Agreement,” The Re-
view-Herald 22 (78): Al, A10, October 13, 1994.

133 Anne Bancroft, "L.A. Gives Up--Mono Lake Finally Saved,” San Francisco Chronicle, A 1 ,
September 29, 1994.

134 “Water Board Set ake at 6,392; DWP Promises No Appeal,” Mono Lake Newsletter 17 (2A)
(Special Issue 1994): 4.

104

Chapter Four

135 Jason Montiel, "Mono Lake, Environment Saved,” Inyo Register 114: A1-A3, September
30, 1994.

136 Dennis Pfaff, “15-year Court Battle Over Mono Lake Leaves Legacy of Legal Fees,” Re-
corder, 1, 5, October 5, 1994

137 Jason Montiel, “Groups Seek to Get Mono Basin Ceek Work Moving,” Inyo Register, De-
cember 21, 1994.

138 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 100.

139 “Lake to Rise Dramatically! Heavy Runoff Year Forecast,” Mono Lake Newsletter 18(1)
(Summer, 1995): 9.

140 “Mono Lake Up 3 Feet and Still Rising!” Mono Lake Newsletter 18(2) (Fall, 1995): 11.

141 Greg Reis, “Mono Lake Surpasses 6,380"," Mono Lake Newsletter 19(2) (Fall, 1996): 7.

142 Greg Reis, “El Nino Returns--Another Wet Winter Coming?” Mono Lake Newsletter Web
version, Fall 1997.

143 Greg Reis, "El Nino Delivers,” Mono Lake Newsletter 20 (4), 21(1) (Spring-Summer,
1998): 14.

144 "Streams, Waterfowl Habitat, Waterfowl Management,” Mono Lake Newsletter 18(1)
(Summer, 1995): 5-7.

143 "Streams, Waterfowl Habitat, Waterfowl Management,” Mono Lake Newsletter 18(2) (Fall
1995): 6-8.

146 Telephone conversation with Jim Canaday, State Water Resources Control Board, Water
Rights Division, June 30, 1998.

147 Jane Braxton Little, "Mono Lake: Victory Over Los Angeles Turns Into Local Contro-
versy,” High County News 29 (23): 1, 10, December 8, 1997.

148 Ibid.

149 Jim Canaday, "Memorandum on Conway Ranch Evaluation Workgroup Mailing List,”
March 13, 1997.

150 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 101.

151 “Mono Lake Decision 1631” http://monolake.org/politicalhistory/dl631test.html: 100.

152 “Water Board Decision Stands Unappealed - Restoration Plans to be Made in 1995,” Mono
Lake Newsletter 17(3,4) (Winter-Spring 1995): 5.

153 Dan Morain, "Mono Lake Supporters Raise Wineglasses to Toast a Victory Over L.A.,” Los
Angeles Times, All , May 12, 1991.

154 “State Votes to Raise Mono Lake Level,” The Review Herald 22(74): Al, A 12, September
29. 1994.

155 Virginia Ellis, "State Sets New Safeguards for Mono Lake,” Los Angeles Times, A3, A15,
September 29, 1994.

156 John D. Cox, “Mono’s Troubled Waters at Peace,” Sacramento Bee, Al, A24, September
29, 1994.

157

Dan Morain, "Mono Lake Supporters Raise Wineglasses to Toast a Victory Over L.A,” Los
Angeles Times, All, May 12, 1991.

158 Bob Schlichting, "DWP Loses in Court, Again, and Again...,” Mono Lake Newsletter 15(2)
(Fall 1992): 5; Dennis Pfaff, "15-year Court Battle Over Mono Lake Leaves Legacy of Le-
gal Fees,” Recorder October 12, 1994.

9 Seth Mydans, “City of Angels Makes Peace in Water Wars,” The New York Times, A10,
October 4, 1994.

160 Kimberlee Noll, Kelli Du Fresne and Jason Montiel, "Reflections of 1994,” The Review-
Herald 23 (2), January 5, 1995.

161 “Litigation Deja Vu: Back to Court for Mono Lake” Mono Lake Newsletter 18(1) (Summer,
1995): 3.

The Mono Lake Case

105

162 See Connie Ozawa, “Science in Environmental Conflicts,” Sociological Perspectives 39(2),
(1996): 219-230.

163 “Water Board Set Lake at 6,392: DWP Promises No Appeal,” Mono Lake Newsletter 17
(2A) (Special Issue 1994): 4.

164 Daniel Wood, "Mono Lake Decision Marks Sea Change in California Water Wars,” Chris-
tian Science Monitor, 3, November 1, 1994.

5 http://www.monolake.org/socalwater/altwater.htm

166 http://www.monolake.org/socalwater/lawcc.htm.

167 http://www5.ladwp.com/whatnew/dwpnews/055000.htm.

168 http://www. monolake.org/newsletter/97winter/symposium.htm;

http://www.monolake.org/newsletter/97fall/waterpols.htm;

http://www.monolake.org/newsletter/98winter/forum.htm

169 http://www.monolake.org/newsletter/97fall/community.htm.

170 First Person, “Sierra Club Scholarship Winner — The Future of My Hometown,” Mammoth
Times, August 10, 2000.

171 Frances Spivy-Weber, “Water Conservation Statewide is Insurance for Mono Lake”
http://www.monolake.org/newsletter/98fall/insurance.htm.

Chapter Five

THE PYRAMID LAKE CASE

How Many Farms, Towns, Fish and Ducks Can the Rivers
Support?

Case Researcher: Erin McCandless

All things are bound together.

All things connect...

Man has not woven the web of life,

He is but one thread

Whatever he does to the web, he does to himself.

Chief Seattle to Governor of Washington Territory, 1855

If there’s water in the big rivers, the small rivers will be full.

Chinese Proverb

Note: This case report illustrates the use of a particular methodological
framework. It is not intended to replicate the legal and historical coverage of
this case provided in other sources. 1

Introduction: This case illustrates the complexities of addressing multiple
environmental needs for water in a region characterized by rapid urban
growth and long established irrigated farms and farming communities. The
Truckee and Carson River Basins in western Nevada are the sites of this dec-
ades-old conflict and are shown in Figure 5.1.

108

Chapter Five

Pyramid lake

Fallon National
Wildlife Refuge

RENO mx)*"

XC «: B 5 W N I

Stillwater Wildlife y
Management Area

CARSON

CITY*

(.arson /f/ver

I ttFmfflHJilllkTJ Stillwater
nlUi Wi National

Trrft r? N wiwnfe

i“ Refuge

m N Bureau of Reclamation
Irrigated Lands

O'?* ,

Figure 5.1 Pyramid Lake Case

The Pyramid Lake Case

109

Time period: The negotiated settlement process began in 1988 and led to
Public Law 101-618 (sometimes called the Settlement Act or the Negotiated
Settlement). This law had two titles and was originally drafted to provide a
financial settlement between the U.S. Government and the Fallon Paiute-
Shoshone Indian Tribe. This analysis will focus on the second title of the act:

Title II. The Truckee-Carson Pyramid Lake Water Rights Settlement Act

Through a combination of negotiation, litigation, legislation, voluntary
transfers, and consensus-building processes a negotiated settlement was
reached, which was confirmed by Congress and written into law in 1990. The
Settlement Act attempted to resolve decades of disputes between the states of
California and Nevada over the allocation and use of the Tmckee and Carson
River basins they share. It also settled several conflicts between competing
users in the State of Nevada and established a framework for identifying and
resolving those conflicts that were not settled by the provisions of the Act.

The Preliminary Settlement Agreement of 1989 and later negotiations and
agreements that were mandated by Public Law 101-618 will be incorporated
into the analysis to varying degrees, insofar as they add to the explanation of
the criteria for analyzing Public Law 101-618. This extends the time period of
analysis from 1988-1998, with emphasis on the 1990 Settlement Act process.

Basic nature of dispute: Access and rights to water flowing through the
Truckee and Carson River basins and the level of water necessary for Pyramid
Lake and the Lahontan Valley.

Issues: Access by all parties to the water rights, the fate of two endangered
species of fish (Lahontan cutthroat trout and cui-ui), environmental degrada-
tion linked to water diversions (including a large trans-basin diversion by a
federally-funded irrigation project), water quality, urbanization, and Native
American water rights.

Actors and Interests: Befitting a dispute that crosses state borders and
involves both usage and quality issues, a large number of actors were stake-
holders in the process. For simplicity, they have been divided into several
categories.

Federal Agencies: The Federal Government was a central part of the

process, with many agencies involved. The most prominent were:

• Truckee-Carson Coordination Office: Established to help
coordinate the various federal agencies involved.

Chapter Five

• U.S. Department of the Interior:

• Bureau of Reclamation, Interest: Responsible for Newlands
Project.

• Fish & Wildlife Services, Interest: Concerned about area wild-
life.

• Bureau of Indian Affairs (BIA), Interest: Concerned about
Native American rights.

• Bureau of Land Management (BLM)

• U.S. Geological Survey (USGS)

• U.S. Department of Defense:

• Army Corps of Engineers

• Fallon Naval Air Station (NAS), Interests: Located near
Fallon in the Carson River Basin, the Fallon NAS is one of the
largest employers in Churchill County. Their water rights have
been used to grow crops adjacent to runways, control dust, and
to suppress aircraft-caused brush and grass fires.

• U.S. Department of Agriculture:

• Forest Service

• Natural Resources Conservation Service

State Agencies: California and Nevada both have interests in the Truckee-
Carson River Basins. Their decades-long pursuit of an interstate compact
culminated in the Settlement Act. The key state agencies included:

California: In California, the agencies listed below were coordinated
under the auspices of the DWR, representing both state and local
agencies . 2 California agencies were concerned with maintaining the
State’s share ofTruckee River water and ensuring enough flow on the
California side of the river to support existing wildlife.

• Department of Water Resources (DWR)

• State Water Resources Control Board

• Department of Fish & Game

• Interstate Compact Commission

The Pyramid Lake Case

111

Nevada:

• Department of Conservation & Natural Resources

• Division of Environmental Protection

• Division of Water Planning

• State Engineer

• Department of Wildlife

• Interstate Compact Commission

• Cooperative Extension Service

Regional Agencies:

• Regional Water Planning Commission of Reno-Sparks and
Washoe County

• Regional Planning Governing Board (Reno, Sparks, Washoe
County)

• Tahoe Regional Planning Agency, Interests: Created by an in-
terstate compact adopted by each state’s legislatures and ratified
by Congress, this agency acts to control growth and regulate
land use planning and development. It also focuses on preserv-
ing the pristine water quality of Lake Tahoe.

• Truckee-Carson Irrigation District (TCID), Interests: Organ-
ized in 1918, it has been operating the Newlands Project for the
Bureau of Reclamation under contract since 1926.

Cities and Counties: Five California counties and seven Nevada counties
lie within the Truckee-Carson River basins, including about 15 cities and
towns. Particularly noteworthy are:

• Reno, Interests: Both Reno and Sparks are primarily concerned
with maintaining an adequate water supply for municipal use
and to support continued growth.

• Sparks: Although Reno and Sparks are separate chartered cities
and were represented separately in the negotiations, they do
share a number of agencies, including a tourism board and
chamber of commerce.

• Washoe County

• Fallon and Fernley, Interests: These are rural agricultural
communities that have served as town centers for the Newlands
Project irrigators for decades and which will bear the brunt of
the impact if changing water allocations cause declines in irri-
gated acreage. (Fallon has a municipal water system that sup-

112

Chapter Five

plies drinking water to thousands of Nevadans. This system is
affected by Newlands Project water deliveries, and the City be-
lieves that its interests are jeopardized by the current implemen-
tation ofthe mandates set in motion by P.L. 101-618.)

• As mentioned above, California communities in the Truckee
and Carson River Basins were represented by the California
DWR.

Native American Tribes:

• Pyramid Lake Paiute Tribe, Interests: The Tribe has been,
and continues to be, a key actor in the decades of conflicts and
proposed solutions. Their interests include the preservation of
Pyramid Lake, which provides habitat for the cui-ui, an endan-
gered fish, and ofthe Lahontan cutthroat trout. The lake and fish
are of special cultural and economic/life-sustaining significance
to the Tribe. Water is a major component ofthe Tribe’s identity,
integrating (the inseparable) people, lake and fish. Newlands
Project diversions starting at the beginning of the century deeply
affected the Pyramid Lake water levels, and the Tribe’s way of
life.

• Fallon Paiute Shoshone Tribe, Interests : The Tribe is inter-
ested in the settlement of claims related to the failure ofthe U.S.
to carry out obligations authorized by Congress. This includes a
1978 Act, Public Law 95-337, where the government recog-
nized its failure to meet contractual responsibilities to the Tribe,
and increased the size of the reservation due to tribal growth.
They wanted more tribal water rights.

• Washoe Tribe of Nevada and California

Environmental Organizations:

• The Nature Conservancy (TNC), Interests: Spoke on behalf
of endangered species and the overall preservation of the envi-
ronment and resources in the area.

• Environmental Defense Fund (EDF), Interests: Improved wa-
ter management to accommodate environmental needs.

• Lahontan Valley Environmental Alliance, Interests: A group
consisting of citizens from Churchill and Lyon counties, Fallon,
Femley, the TCID, and the Lahontan and Stillwater conserva-
tion districts whose aim is to serve as a public forum for water,
growth and environmental issues.

The Pyramid Lake Case

113

• Sierra Pacific Power Company, Interests: The Sierra Pacific
Power Company is a water retailer that supplies directly to us-
ers, and a wholesaler, supplying to small purveyors. It supplies
water to Reno and Sparks (53,000 customers) and gets unstored
water from the Tmckee River and its tributaries, while stored
water comes from local lakes. It also provides electric service to
235,000 residential and commercial customers in Northern Ne-
vada and northeastern California, and natural gas to 74,000 ac-
counts. 3 Sierra Pacific Power Company holds direct diversion
rights to the Truckee River. However, the seniority of these
rights vis-a-vis those of the Pyramid Lake Paiute Tribe are a
subject of the Tmckee River Operating Agreement (TROA) ne-
gotiations.

Attempted conflict resolution processes: A combination of litigation,
negotiation, voluntary transfers, and consensus-building processes to reach a
negotiated settlement, which led to legislation in the form of an Act ratified
by Congress. Senator Harry Reid of Nevada, who assumed office in 1987,
initiated and led this process. This report was compiled in 1998 and 1999, and
edited in 2000. 4

History of the Pyramid Lake Conflict

Truckee River.

1860s:

Alexis von Schmidt forms a company to ship Lake Tahoe
water to San Francisco.

1860s- 1900:

A dam is built for the von Schmidt project. Opposition from
Nevada causes cancellation of the project.

1902:

The Newlands Irrigation Act is passed to irrigate lands
around Fallon, Nevada.

1905:

The Newlands Irrigation Project is initiated. Changes in water
flows result in increased litigation.

1908:

The Truckee River General Electric Company & Floristan
Pulp & Paper Company agree on Truckee River flow re-
quirements.

1915:

The Truckee River General Electric Decree is issued by a
Federal court, granting the Reclamation Service (operators of
the Newlands Project) an easement to operate the Lake Tahoe

114

Chapter Five

dam. The decree is revised to require the government to ad-
here to the Floristan flow agreement.

1924-1935: Conflicts arise between lakeshore owners and irrigators over

water flows during droughts. One incident involves a steam
shovel sent by TCID with an armed guard to dig a diversion
trench to restore flows that were curtailed by lowered lake
levels. Ensuing negotiations conclude with the 1935 Truckee
River Agreement, which still remains the basis for river op-
erations.

1944: The Orr Ditch Decree apportions Truckee water rights be-

tween the Pyramid Lake Tribe. Sierra Pacific Power Com-
pany, the Newlands Irrigators, TCID, Washoe County Water
District, and individual rights holders.

Carson River.

1905: The Anderson-Bassman Decree addresses water rights be-

tween upper river users and the Newlands Project users.

1921: The Price Decree adjudicates to California the rights to Car-

son River water.

1925-1980: Federal litigation covering Carson Basin rights to establish

the Newlands water rights culminates in the 1980 Alpine De-
cree.

Background

Lake Tahoe, on the border of California and Nevada, stretches over an
area of 192 square miles with a depth of 990 feet. The lake feeds the Truckee
River, which - along with the Carson River - ends in Nevada’s Great Basin.
The Truckee River flows through Reno and Sparks and empties into Pyramid
Lake, which is surrounded by the Pyramid Lake Indian Reservation inhabited
by the Pyramid Lake Paiute Tribe. The Carson River flows into the Stillwater
Wildlife Management Area and the Carson Sink where any remaining water
evaporates. There is a section of Reservation here that is home to the Fallon
Paiute-Shoshone Tribe. Conflict over water rights and allocation of the
Truckee and Carson Rivers goes back to the early 1900s.

Many different parties have a stake in decisions affecting the use of these
rivers. The cities of Reno and Sparks want the water from the Truckee River
for municipal use, while the various power companies are concerned with
maintaining hydropower for the area. Industry in the area, such as the Floris-

The Pyramid Lake Case

115

tan Pulp and Paper Company, also rely on water from the rivers for their op-
erations. Irrigation districts, farming dealers, and farming communities repre-
sent the agricultural interests in the area. In addition, the Pyramid Lake Indian
Tribe is concerned with maintaining the fisheries at Pyramid Lake since they
are the primary resources for the Tribe. They also require water for irrigation.
Pyramid Lake is home to two endangered species: the cui-ui and the Lahontan
cutthroat trout. The lake requires certain water levels for the species’ contin-
ued existence. Area Tribal leaders and representatives of the Sierra Club, the
Nature Conservancy, the U.S. Department of Fish and Wildlife, and the Still-
water Wildlife Management Area have spoken on behalf of the endangered
species and the overall preservation of the environment and resources of the
area.

In 1859, the Department of the Interior set aside half a million acres as a
reservation for the Paiute Indians. In 1874, the President of the United States
confirmed the withdrawal of land. The Reclamation Act was passed in 1902,
which directed the Secretary of the Interior to reclaim some land and to de-
velop irrigation projects so the land could be homesteaded. In 1903, approxi-
mately 200,000 reclaimed acres in Western Nevada became the Newlands
Reclamation Project.

Problems over water use began in 1903 with the creation of the Newlands
Irrigation Project by the Reclamation Services (later known as the Bureau of
Reclamation). The project diverted water from the Truckee River to the Car-
son River with construction of the Derby Diversion Dam. Once in the Car son
River, the water was stored at Lahontan Dam and distributed for irrigation.
The Truckee Canal was completed in 1905 as part of the irrigation project. At
that point in time there were no established water rights, although there were
many concerns about the effects of the diverted water on the area’s historical
water users. Then, water rights for agricultural landowners and the Pyramid
Lake Tribe were established in 1913 through a suit brought by both these
landowners and the United States. Eventually, the management of the
Newlands Irrigation Project was transferred from the Bureau of Reclamation
to the Truckee Irrigation District.

The completion of the irrigation project greatly affected water levels in
Pyramid Lake. These lake changes had such a drastic negative impact on the
fishery at the lake that, by 1935, the government stepped in on behalf of the
reservation to request additional water. The request for additional water was
approved in 1944 and issued as the Orr Ditch Decree. Despite this additional
allocation of water, the continued diversion of water from the natural system
caused further decline in the habitat of the area. In response, the Stillwater
Wildlife Refuge was created in 1948 in an attempt to preserve the area. The
only problem was that the refuge was located in the Carson River Basin and
water levels there did not affect the levels of Pyramid Lake.

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With the implementation of the Endangered Species Act of 1967, conflict
over water allocation increased. Under the Endangered Species Act, the La-
hontan Cutthroat trout was listed as “threatened” and the cui-ui listed as “en-
dangered”, with Pyramid Lake declared a critical habitat for both species. The
survival of these species was directly related to the water levels at Pyramid
Lake. Many court cases were filed to ensure the necessary water levels for the
continued survival of these endangered species.

In addition to the problems surrounding wildlife, the population of Cali-
fornia and Nevada continued to increase rapidly. This continued growth
brought drastic increases in demand for water, leading both states to begin
negotiations in 1955 for an interstate compact to allocate their waters. Their
negotiations culminated in an agreement 14 years later. The agreement ex-
cluded parties such as the Pyramid Lake Reservation and issues such as the
environment and endangered species. Because of the limited scope of these
negotiations, Congress never approved the interstate agreement.

In 1970, the Stampede Dam was built as part of the Washoe Project Act.
The project was established for many purposes, including flood control, irri-
gation, storage of water in case of drought, power generation, development of
fish and wildlife resources, and “other beneficial purposes.” The Carson-
Truckee Water Conservancy District was created under Nevada law to act as
the agency to purchase the water stored by the Washoe Project. The Secretary
of the Interior was to control the flow of water of the Truckee River by moni-
toring the releases from Stampede Dam. Because the United States funded the
initial project, there were guidelines set up for the repayment of costs. Re-
payment would be made possible through the sale of Stampede water.

Several parties raised concerns at various points. Lirst, there were concerns
that the project did not protect the Pyramid Lake Indians’ interest in preserv-
ing the lake and its fishery. However, arrangements were made to assure ade-
quate water supply. Then, just prior to the construction of the dam, the Secre-
tary notified the Carson-Truckee Water Conservancy District that Stampede
Dam would only be used for fish and wildlife, recreation, and flood control
and that he had no intention of allowing for municipal and irrigation uses. As
a result of the Secretary’s decision, bargaining power shifted in the regional
battles over area water. The allocation of Stampede reservoir fishery needs
gave the tribe and environmental organizations a strong position, from which
they would negotiate with urban interests who wanted the Stampede water
made available for their needs.

Three sets of legal cases defined and attempted to resolve many of the is-
sues. The first set are known as the “Orr Ditch” and “Alpine” cases, which
were to decide the Truckee River water rights for the Pyramid Lake Indian
Reservation (Reservation) and the Newlands Reclamation Project (Project).
The second set were cases involving water controlled through Stampede Dam

The Pyramid Lake Case

117

and Reservoir. Finally, the third set were cases involving the status of the
Fallon Paiute Shoshone Indian Tribe. Before describing the cases, the follow-
ing provides a summary of the litigation.

Summary of Litigation/Negotiations

Court battles occurred throughout the 1980s in which the Carson-Truckee
Water Conservancy District sued to approve municipal and irrigation uses of
the Stampede Dam Water. The District was concerned with the repayment of
dam costs and fulfillment of the area’s water needs. In 1982, the U.S. District
Court ordered that any remaining water be sold after requirements for the
Tribe and endangered species had been fulfilled. By contrast, the U.S. Court
of Appeals ruled in 1984 that irrigation and municipal uses were appropriate,
but the Secretary was not obligated to sell the water for such purposes.

The court battles did not resolve the area issues, and negotiations outside
the courtroom had not been attempted since the agreement between the states
of California and Nevada. Interested in resolving some of the conflict, Nevada
Senator Reid attempted to bring the water users of the Truckee River together
in 1985. A year later, negotiations between the parties began. As a result of
these talks, the Fallon Paiute Shoshone Tribal Settlement Act was supported
by California, Nevada, local utilities, the Tribes, interested conservation or-
ganizations, and the U.S. Department of the Interior. Congress approved the
Act in 1990. Some agricultural water rights holders - especially the TCID -
and other interested parties opposed some of the provisions of the legislation.
Problems surrounding implementation also had yet to be solved. Despite the
attempt at inclusive negotiations, it was not until three years after the passing
of the Settlement Act that public hearings were scheduled. The discussions at
the hearings made it clear that negotiations were once again needed.

A professional facilitator was appointed by Senator Reid to guide new ne-
gotiations that proceeded from September 1994 to March 1995. As a result of
these discussions, instream flows and water quality were to be strengthened
through the development of a framework of operations. Efforts began to im-
prove the planning on the upper Carson and maintain the Lahontan Valley
wetlands. A commitment was made to develop tools to achieve minimum lev-
els for recreation and fisheries in the Lahontan Reservoir. It was decided that
the Fallon Paiute-Shoshone Tribe would have more independence in their wa-
ter management. Finally, certain mechanisms were established to protect the
Fallon Tribe from water losses, which might result from new operating crite-
ria for the Newlands Irrigation Project.

Attempts to resolve the conflict surrounding the Truckee and Carson rivers
began with negotiations outside the courtroom. When the resulting compact
was not approved because it excluded many interested parties, the conflict

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moved to the courts. Upon the failure of the courts to resolve the conflict,
group problem solving through formal negotiations was attempted once again.
Although this last round of talks produced some partial solutions, unresolved
water allocation and management issues remain, as well as questions about
the parties’ willingness to follow through with the solutions.

Focus of Case Study

This study focuses on the 1990 Settlement Act. The process of negotiating
this specific agreement began in 1988 and the Settlement Act was passed into
Public Law 101-618 on November 16, 1990. Several key aspects to this
agreement are still under negotiation, and many are currently in various stages
of implementation.

There have been hundreds of meetings, so the “table” concept as a one-
session event is not accurate for this process. The whole “agreement” is a
multi-layered one, negotiated and implemented in stages.

Public Law 101-618 established a framework to negotiate a resolution of
multiple issues and is the “agreement” or outcome for the purposes of this
analysis. However, success cannot be evaluated without looking at implemen-
tation, and a major component of this process and agreement (the Truckee
River Operating Agreement) is still under negotiation at this writing in 1998.

Various related agreements, for example, the 1996 Water Quality Agree-
ment, the Preliminary Settlement Agreement as modified by the Ratification
Agreement, and the Contract between the U.S. and the Truckee-Carson Irriga-
tion District (TCID) for the Operation and Maintenance of the Newlands Pro-
ject, have been successfully negotiated since the Preliminary Settlement
Agreement.

Given the interrelated nature of all of these agreements however, looking
at any one of them alone would remove it from its context. For example, the
Truckee River Operating Agreement (TROA) must fulfill the conditions of
the Preliminary Settlement Agreement as modified by the Ratification
Agreement (PSA), and this PSA will only go into effect upon the agreement
of TROA. To the degree that these other agreements support an understanding
of (relative) success of the Settlement Act, they are included in the assess-
ment.

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119

I. CRITERIA: OUTCOME REACHED

A. Unanimity or Consensus

Not Unanimous; there were parties not at the table who left or walked
out on negotiations.

The Settlement Act was an incremental process, involving different parties
at various phases. Senator Reid, the initiator of the process, considered this
the best strategy. In the first round of negotiations, beginning in 1987, the Si-
erra Pacific Power Company, the Pyramid Lake Paiute Tribe, the State of Ne-
vada, and the Truckee-Carson Irrigation District were brought to the negotia-
tion table. By June 1988, the Tmckee -Carson Irrigation District had with-
drawn from the process. 5

A number of new actors were introduced in 1988. One of these was the
Fallon Paiute Shoshone Tribe. Senator Reid felt that their legal position was
so strong that, combined with the federal government’s commitment to see
that their situation was remedied, their participation was not necessary earlier.
Also, a settlement fund of $43 million had already been agreed upon. In addi-
tion, the State of California, the Stillwater National Wildlife Refuge, Fallon
Naval Air Station, the Cities of Reno and Sparks, and the US Department of
Interior (Bureaus of Reclamation and Indian Affairs) 6 were included in nego-
tiations. Over time, the sessions grew larger as the Lahontan Valley Wetlands
Coalition and the Coalition for a Negotiated Settlement were introduced into
the process.

The Fallon Paiute Shoshone Tribe, the Pyramid Lake Paiute Tribe, and the
Sierra Pacific Power Company supported the 1989 Preliminary Settlement
Agreement. In addition, California, Nevada, and the Department of the Inte-
rior gave their support. Those in opposition to the Preliminary Settlement in-
cluded individual agricultural water rights holders and the Truckee-Carson
Irrigation District (TCID), with the latter withdrawing from negotiations in
mid-1988. It is important to note that this agreement is considered an impor-
tant building block to the overall process, and was later incorporated into the
Truckee River Operating Agreement - TROA - (or final settlement act). The
parties who signed the Preliminary Settlement Agreement included the Pyra-
mid Lake Paiute Tribe, Sierra Pacific Power Company and later, the U.S.
Government. 7

Why the TCID - (the irrigators) - left the table

The Newlands Water Protective Association noted in a news release that,
“In 1985 the Pyramid Lake Paiute Tribe walked out of a negotiated settlement
as it was ready to go to the congress. We don’t hear anything about this in the

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media, yet we hear that the farmers walked out of the 1990 negotiations. We
continued to participate in negotiations but were told that other parties could
reach agreement without affecting individual water rights. The final bill did
cause problems with individual water rights. We tried to make changes that
would have protected our rights and not have affected the upstream settle-
ment.” They go on to further express their willingness to negotiate.

The Clearwater Consulting Corporation (CCC) Report also notes that a
more neutral characterization of events was provided through personal inter-
views with participants to the process, including state and federal officials as
well as irrigators. According to these sources, an impasse had been reached at
a particularjuncture of the Reid-sponsored negotiations and a mutual decision
was reached that it was not productive to go forward. The irrigators were not
prepared to accept the demands placed upon them, but they did not express an
unwillingness to continue the negotiations. A more accurate description
would probably be that the parties were unable to agree. The CCC report
notes that this description would also apply to the 1994-5 Second Generation
Negotiations. 8

Several sources say that TCID had little incentive to participate, believing
they could do better in court. 9

Pursuant to the final settlement agreement are ongoing negotiations re-
garding the TROA. As of mid- 1999, 14 parties have been engaged in a dis-
cussion of applicable legal principles to be used in developing goals, objec-
tives, and general principles for the TROA.

Parties Participating in Ongoing TROA Negotiations

US Dept, of the Interior
Sierra Pacific Power Co.
City of Sparks, NV
Washoe County WCD
City of Reno, NV
TCID

Town ofFernley

Pyramid Lake Paiute Tribe

Carson-Truckee WCD

Washoe County

State of California

Churchill County

State of Nevada

Fallon Shoshone Paiute Tribe

B. Verifiable Terms

The agreement was written and formally signed as an act of Congress in
1990. Its terms were published in the media or posted in public forums. It ap-
pears that there was quite a bit of explanatory and educational literature about
the act in the general media. There was also a great deal of coverage by the
parties themselves to their own constituencies. The Pyramid Lake Paiute

The Pyramid Lake Case

121

Tribe covered the Settlement Act extensively in their Pyramid Lake Water
Resources Newsletter. Sierra Pacific Power Company has covered the issues
by Internet, as well as by sponsoring information in the newspapers. There is
a wealth of information about water issues generally, and copies of the Set-
tlement Act in local libraries along with newspaper clippings.

C. Public Acknowledgement

The agreement process was well covered in the newspaper, despite being a
“private” or “secretive” process, as often described by the public (see letters
to the editor below).

Reid distributed his views on the legislation through the newspaper and
letters in Aug. 1990.

Because water is a question of life and death, I said from the
beginning that my legislation could never become law unless
you, the people of Nevada, were behind it. I stand by that
commitment. Some people want to delay this legislation until
it is too late for it to become law. MAKE YOUR VIEWS
KNOWN, both to me and your state and local officials. We
have until early September to decide where to go on this ex-
tremely important issue. 10

The parties themselves appear to have undertaken various media efforts
regarding the Settlement Act and their preferred views on the subject. Sierra
Pacific Power Company, for example, maintains a web page explaining to
people why the agreement is good for the region.

D. Ratification

The 1989 Preliminary Settlement Act negotiated between the Pyramid
Lake Paiute Tribe and the Sierra Pacific Power Company required ratification
by the federal government due to the involvement of federally-owned reser-
voirs. It was ratified in 1990, via its incorporation by reference in the Settle-
ment Act. One year later, on November 16, President Bush signed the agree-
ment into law, within Public Law 101-618.

The CCC Report describes the Washington politics that took place to pass
the bill, noting that:

Washington politics proved to be an even more complex ne-
gotiation process than that which took place in Nevada, with
many Congressmen, Senators, committees, agencies, and the
President needing to sign off on the bill to make it law. 11

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The Report explains that while the bill initially died in a package of other
water bills in the Senate Water and Power Subcommittee, it later was revived
and attached as a rider to S-3084, the Fallon Paiute Shoshone Tribal Settle-
ment Act.

In addition to the ratification process, the TROA will require some degree
ofjudicial approval, particularly by the courts dealing with the Orr Ditch De-
cree. 12

II. CRITERIA: PROCESS QUALITY

A. Procedurally Just

The settlement negotiations were private and confidential.

Parties were asked not to reveal information about the negotiation ses-
sions. Furthermore, anything learned in the settlement negotiations could not
be used unless it was publicly disclosed. Despite the level of confidentiality,
the Reno Gazette of May 13, 1998 reported that:

He [Senator Reid] won the respect of most of the parties be-
cause he was seen as an honest broker. He didn’t favor any
one side and made everybody buckle down and compromise.

Other sources suggest that the parties perceived the fairness of the process
differently. The Pyramid Lake Paiute Tribe seems to have been unsatisfied
with the conceptualization of the agreement. 13

In reviewing decrees and agreements related to our water,
they have all been established on the prior appropriation doc-
trine. It is based on this concept of, “first in time, first in
right”. This is not understood. If an Indian Tribe at the end of
a river system receives the least amount of water than anyone
else, plus receiving “discharged” water, it appears that in our
position we must work harder to preserve water quality. Pres-
ently we are working on establishing our own water quality
standards for water reaching the reservation. 14

The CCC Report notes that one observer saw a difference in atmosphere
during the 1988 negotiations. In the previous attempts, an “us” versus “them”
attitude, pitting non-Indian against Indian claims often emerged and pushed
Indian interests into the background. At the 1988 negotiations, there was a
better bargaining environment (with the exception of the TCID), where all
parties seemed to not want to return to court battles. After the TCID’s depar-

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123

ture, the other parties remained and took one issue at a time. Entering the ne-
gotiations, “all sides had won some victories but no one felt secure or saw a
way to get more of what they wanted through litigation.” (CCC Report, fn #
32). While the TCID had extensive legal rights to the use of Carson and
Truckee River waters, it found its access to Tmckee water reduced by the
courts.

The 1988-90 process took place over several years, though there was a
deadline placed on reaching agreement with the fanners. Considering that
there was no successful agreement during the 90-day negotiations, one could
argue that there was not enough time. However, the protracted nature of the
conflict was illustrated by the fact that there have been ongoing stalemates in
attempting to reach an agreement over the farmer’ s issues.

The press covered in great detail the perceptions of the irrigators concern-
ing unfair treatment. It seemed to be reported objectively, though occasionally
it appeared somewhat alarmist, as if the farmers were being made the scape-
goats. 15 The CCC Report postulates that efforts of the irrigators to participate
in the Settlement Act have been hampered for two reasons. First, conceptu-
ally, because the federal government. Pyramid Lake Paiute Tribe, and Sierra
Pacific Power Co. have been moving toward a more risk-based management
scheme — trading firm water rights for a physical solution that provides an
adequate margin of safety in water-short years. The irrigators believe that they
should have rights without risk. The second reason is more political, with
power shifting away from the irrigators and toward the Tribe, environmental
concerns, and upstream uses, the irrigators’ bargaining power has eroded sub-
stantially. 16

B. Procedurally Accessible and Inclusive

1. Public Notice and Public Participation

Although it was difficult to find information on this aspect, it appears that
very little time was allotted for public input into the process that was the focus
of this analysis. Congressional committees changed the Act and there did not
appear to be any comprehensive “education and participation” aspects to the
process.

The Draft Environmental Impact Statement (EIS)/TROA describes its
“public involvement plan” as a process where interested and affected indi-
viduals, organizations, agencies, and governmental entities are consulted and
included in the decision-making process. Aiming to solicit public input in de-
fining the public issues surrounding the action, identifying alternatives to be
evaluated and to educate the public on the issues, a structured public involve-

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ment plan was laid out in August 1992. As required by EIS preparation, scop-
ing meetings were held, and are a “continuing and integral paid of the decision
process, environmental review, and documentation for the TROA EIR/EIS.” 17

The report describes several other public meetings, including a consulta-
tion/education session with the Pyramid Lake Paiute Tribe. It goes on to de-
scribe the development of a newsletter that went out to a mailing list of those
who had been involved in meetings. 18

The TCID has made scathing comments regarding the TROA Summary
statement: “A public involvement program encouraged the general public and
governmental agencies to help identify issues related to the resources in the
Truckee River [Bjasin.” 19

This is a vociferous misrepresentation of the facts! There has
never, ever been any attempt to make any of those TROA
meetings public! And in fact, quite the contrary. On 5 Octo-
ber 1995, this Irrigation District formally protested, in writ-
ing, the Department of Interior’s conduct of unannounced,
clandestine meetings here in Nevada, right in the Truckee
Meadows... Federally, there was never any attempt nor en-
couragement to gain public response(s). And in fact, on those
rare occasions when the subject was broached, the Depart-
ment of Interior position was quite adamant - neither the pub-
lic nor the press were invited, nor welcome. 20

To ensure this continued exclusivity, agendas were never publicly noticed
in any prescribed or commonly accepted manner. Outside of a sanctioned
short “telefax” list to participating agencies, there simply was no notification
process. To maintain this subrosa status, the term meetings was changed to
negotiations, and the following caveat was written or stamped on all papers
that may have been distributed.

For settlement negotiations only: Notice: This document is
prepared and made available to participants and observers in
the negotiation of the Truckee River Operating Agreement
referenced in Public Law 101-618 (104 Stat.3289). Receipt
and retention of a copy of it by any person or entity consti-
tutes that person’s or entity’s agreement that it may not be
used for any purpose outside of those negotiations, including
any ongoing or future litigation or administrative proceed-
ings. 21

2. Public Access to Information on Issues

The process seemed very well covered in the media, though perhaps more
educationally, after it was passed into law. December 1993 and April 1994,

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125

Reid convened public hearings on implementation of the Act. Concerned par-
ties (including farmers) had problems with some of the provisions, and im-
plementation issues still needed to be resolved. A second round of negotia-
tions - “The Second Generation Negotiations” aimed at long-term solution
was planned by Senator Reid. Other sources suggest that there was not
enough access to information:

Senator Harry Reid has promoted his original water bill as the
salvation of northern Nevada. Now it seems the new senate
bill is even better: so good in fact that no one should have the
right to adequate review time or due process . 22 (Tom Riggins,

Fallon)

...it is also deeply disappointing that the talks were conducted
in secret. Four times over the past decade the farmers and the
tribe have been involved in such talks and every time the
talks were held behind closed doors. It’s time to bring the
talks into the open, where everyone can follow the issues and
maybe even offer some helpful suggestions to break this im-
passe. Reportedly, the negotiators have feared that public
ta lk s could lead to sensationalization and make matters
worse. But it is difficult to see how matters could get much
worse since secrecy has accomplished absolutely nothing.

Further, this is a matter of grave interest not just to the nego-
tiators but to all water users of the Truckee River water. All
users are affected by what other users do. So while urging the
talks to resume, we also urge them to be public. More things
grow in the light than in the dark of night . 23

C. Reasonable Process Costs

Bill Bettenberg, chief negotiator for the Department of Interior, indicated
he had no budget/accounts for the process. He spoke about the more recent
TROA and WQA processes, which he said, “were not cheap,” and in most
cases the parties have paid their own costs for participating.

Some of the process costs of the secondary negotiations, namely the hiring
of a professional mediator, were paid by Senator Reid’s office. However, ac-
tual figures for this stage of the negotiation are not publicly available.

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III. CRITERIA: OUTCOME QUALITY
A. Cost Effectiveness

The Federal Water Masters Office is developing a new computer account-
ing system to track reservoir operations and water ownership for use on a
daily basis to effectively implement the TROA. The system will cost
$365,000. The US Department of Interior has requested that the State of Cali-
fornia contribute one-fifth of the necessary budget.

1. Costs to Parties at the Table

Each of the mandatory signatories 24 was asked to pay for a part of the im-
plementation costs. For example, each party has been asked to come up with
$75,000 for the Water Master. Where the states are concerned, local and met-
ropolitan agencies share the costs. While the Department of Interior has paid
for most of the TROA EIS/EIR, the State of California will pick up some of
these costs given that California has its own environmental act to comply
with, the California Environmental Quality Act (CEQA). Nevada has no
equivalent state policy, falls under the National Environmental Policy Act
(NEPA) and does not share in EIS/EIR costs.

The Sierra Pacific Power Company calls the Settlement Act Sierra’s
“foremost water resource project for the future.’’ Not only does it provide the
largest yield of any resource identified - sufficient for 50 years or more - but
it also secures the community’s existing Truckee River supply, and specifi-
cally, it more than triples the drought storage available to Sierra. (Sierra’s ob-
jective in the Negotiated Settlement was to acquire additional storage in up-
stream reservoirs.) 25

In describing their estimated yield and costs, they say: “Yield of this pro-
ject is estimated at 39,000 AF/yr. which reflects the conversion of 42,900 AF
(39,000 x 1.1 of irrigation rights). The capital costs associated with this option
are surface water treatment, water rights acquisitions and retrofit metering.
The Settlement also requires Sierra to use its best efforts to implement Sparks
Pit and Donner Lake as water resources. The cost of Donner Lake ($3.8 mil-
lion) is included at the value of Sierra’s last offer to TCID. Sierra has already
accomplished the equivalent of the Sparks Pit project through development of
other groundwater options, so its costs are not included.” 26 This means that, as
part of the negotiated settlement, Sierra Pacific is required to find other water
sources — to restore flows to Pyramid Lake — and to provide an adequate sup-
ply of water for drinking, electricity generation, and the restoration of the en-
vironment in the Pyramid Lake region.

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127

In their March 1998 publication, 1995-2015 Water Resource Plan Sup-
plement, the benefits and “requirements” are listed, with a note that “it re-
mains to be seen whether some of these parties will conclude that the indirect
benefits outweigh the perceived costs of the agreement for their interests.

Benefits: Interim drought storage for Truckee Meadows until Settlement
Act becomes effective; permanent drought storage for Truckee Meadows;
drought storage for Fernley (proposed); certainty regarding interstate alloca-
tions of the Truckee and Carson Rivers; improved timing of river flows for
threatened and endangered fish; water quality enhancement by flow augmen-
tation; improved instream flows and reservoir levels in CA; wetlands recovery
at Stillwater; reduced litigation region-wide; and more water reaching Pyra-
mid Lake.

Costs: Payments to U.S. for drought storage; waiver of Sierra’s ‘hydro-
electric right;’ installation of water meters in Reno/Sparks; water conservation
in Reno/Sparks; legal/engineering costs to implement settlement; water right
purchases for water quality; donation of Sierra’s water in non-drought to fish-
ery; 10% over-dedication of water rights for new service by Sierra; and con-
cession of claims to unappropriated water to Tribe.

While the contents of the water conservation plan were not known at the
time of the Settlement Act, the July 1996 conservation agreement reached
between Sierra, the Tribe, Reno, Sparks, and Washoe County and ratified by
the U.S., hold Sierra to the following obligations until 90% meter installations
are reached: (1) They must expend up to $100,000 annually for free water-
saving devices and field personnel to support lawn- watering limits; (2) ex-
pend at least $100,000 annually to encourage projects to retrofit water effi-
cient landscaping and one ongoing requirement; and (3) expend at least
$50,000 annually for public education about conservation. 27

They further discuss the development costs of TROA, and conclude that
while it has been higher than predicted, “it is probable that litigation costs
would have exceeded the costs of TROA. Most certainly the costs of uncer-
tainty to the community would have grown as the issues in litigation grew.”
They cite Docket No. 94-6015: “The parties agree that Westpac should con-
tinue to pursue the Negotiated Settlement as the leading water supply option
in this Water Resource Plan. In addition, Westpac agrees to conduct its nego-
tiations with the parties to the TROA in such a way that costs for the Settle-

ment continue to be cost-effective.”

Pyramid Lake Paiute Tribe: “The tribe and the urban users had won a ma-
jor victory. This act recognized the responsibility to return water to Pyramid
Lake and to the wetlands.... For the Paiutes, the power has shifted in their fa-
vor. The Settlement Act set up a tribal economic development fund of $40
million and a fishery fund of $25 million. The tribe is a force to be reckoned
with today.” 29

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“In short, the Water Quality Agreement benefits everyone on the TR from
the Lake Tahoe to Pyramid Lake.” 30

• for Truckee Meadows urban interests

• improves tourism (TR flows through the heart of downtown Reno)

• settlement of lawsuits

• for Reno/Sparks: dependence heightened during the recent severe
drought in the late 1980’s - early 1990’s when the river frequently
dried up during the summer months and wildlife dependent upon the
river suffered

• for California: will help meet minimum and preferred flows in the up-
stream portion of the river; additional water held in storage will im-
prove recreation levels

• will contribute substantially to meeting the water quality standards of
the Clean Water Act and inflow stream requirements in CA, NV, and
PL Indian Reservations

• will go a long way towards implementing the objectives of the cui-ui
recovery plan

2. Costs to the Public/Costs of Not Settling

Senator Reid, in his public letter, noted “[i]f we fail, our way of life will
alter drastically because droughts are becoming more frequent. Also, we will
lose millions of tax dollars when the federal government, the state, the local
governments, the utilities and the Indians go back to court.” However, an op-
posing opinion was offered by OMB, in which they stated that the govern-
ment had no legal obligation to restore Indian rights considered lost after the
Orr Ditch Decree. OMB further opposed the settlement on the basis of tax-
payer costs in the form of federal payments for implementation. 31

3. Costs to Other Parties Not at the Table: Impacts on Ratepayers

Sierra Pacific Power Company, in its promotional literature supporting the
agreement, emphasizes that “Water meters guarantee fairness, because they
see to it that we’re all charged only for what we use. Those who try to save
won’t subsidize those who don’t. Once installed, most of us will pay the same
- or less - for water. Those with larger lots and houses will pay more.” They
also note that customers will not pay for meter installation, nor will Sierra
Pacific Power Company. Hence, their water rates will not be raised for this
service. This assertion, along with Sierra Pacific’s estimate of costs to imple-

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129

ment the plan, indicates that the company intends to shoulder implementation
plans itself. However, one should note that while Sierra Pacific states that wa-
ter rates will not rise, it says nothing about electric rates. Therefore, it may be
safe to assume that some costs will, as usual, be passed to the consumer; al-
though these may be somewhat less than the actual costs of implementation.

B. Financial Feasibility/Sustainability

The Secretary of the Interior is authorized to enter into an agreement with
the State of Nevada for use by the State of not less than $9 million of State
funds for water and water rights acquisitions and other protective measures to
benefit Lahontan Valley wetlands. 32 He is also authorized to reimburse non-
Federal entities for reasonable and customary costs for operation and mainte-
nance of the Newlands Project associated with the delivery of water in follow-
ing the provisions of this subsection.

The Federal Government (treasury) is authorized to appropriate $25 mil-
lion for the “Pyramid Lake fisheries fund” (the principle of which is unavail-
able for withdrawal, with the interest available for the Tribe, for the purposes
of operation and maintenance of fisheries). 33 The government is also author-
ized to appropriate $50 million for the Pyramid Lake Paiute Economic Devel-
opment fund, where the principle and the interest can be used by the Tribe
according to a plan made in consultation with the Secretary of the Interior. 34

The State of Nevada must provide no less than $4 million for use in im-
plementing water conservation measures pursuant to the settlement described
in paid 1 of this subsection. 35

Overall, the cost-sharing mandated by TROA requires the Federal Gov-
ernment to pay for 40% of the administration costs of the Agreement; with
California paying 20% and Nevada (with contributions by the Tribe and
power company) also paying 40%. Other costs were difficult to determine as
they were often subsumed in the operating budgets of the various depart-
ments.

C. Cultural Sustainability/Community Self-Determination

According to the National Historic Preservation Act of 1966 (NHPA), as
amended. Federal law requires Federal agencies to consider the effects of
their undertakings on cultural resources. In preservation of national, State,
regional, and local resources of cultural significance, the NHPA (specifically
section 106) requires agencies to consider the effects of its actions on “any
district, site, building, structure, or object that is included in or eligible for
inclusion in the national Register.” Other legislation includes the protection of
historic and archeological resources by the Federal Government, i.e. the Ar-

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cheological Resources Protection Act and the Native American Graves Pro-
tection and Repatriation Act. Discussions involving the Fallon Shoshone Pai-
ute Tribes, Pyramid Lake Paiute Tribe, the Reno-Sparks Colony and the
Washoe Tribe regarding cultural properties began in 1995 and are ongoing (as
of June 1998). 36

Pyramid Lake Tribe members note that the Endangered Species Act is
providing mechanisms that allow them to recover cui-ui, a fish species at the
core of their cultural and economic lifestyle but that the “Tribe is suffering a
sense of loss for cultural preservation by not having the ability to harvest the
Cui-ui. One whole generation has not consumed any Cui-ui and there is a
strong desire to seek a method of preserving its practice since the Cui-ui are
the foundation of our culture.” 37

The irrigators should also be considered, as their lifestyles have and will
continue to change as a result of the Settlement Act. “Now farmers instead of

-jo

Indians are losing water and their livelihood.”

One member of the Lahontan Valley negotiating team for the Second
Generation Negotiations declared, “If we start removing water from water-
righted lands, we will destroy Fallon.” He went on to call the changes to the
Lahontan Valley “cultural genocide.”

D. Environmental Sustainability

Water conservation measures were a major aspect of Public Law 101-618,
as well as an overriding goal throughout the negotiated settlement process.
This has been an ongoing goal for the Pyramid Lake Paiute Tribe.

Water conservation measures: Naval Air Station (NAS): Under the Settle-
ment Act, the NAS was required to develop a modified land management plan
and implement water conservation measures. 40 These saved or conserved
NAS waters, thus assisting with conservation of Pyramid Lake resources (fish
and wildlife, though primarily cui-ui), and the Lahontan Valley wetlands. A
Memorandum of Agreement was signed regarding these purposes, with an
expected 2,300 acre-feet per year available.

Reno/Sparks Area residents: Must implement a water conservation pro-
gram that produces a savings of 10% in drought years. Installation of water
meters was required. 41 The Nevada Legislature insisted that the water saved
by the installation of meters must be stored for drought protection [and not
used for future growth accommodation]. 42

July 1996 Water Conservation Agreement (WQA): Two key concepts of
this agreement included: 1) instead of drought-year-only conservation called
for in the Preliminary Settlement Agreement as modified by the Ratification
Agreement, more emphasis is placed on every-year conservation; 2) local
governments agree to continue twice-weekly watering until 90% of water me-

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131

ters required by the Preliminary Settlement Agreement as modified by the
Ratification Agreement have been installed. 43

Water: One objective was to sustain on average 25,000 acres of primary
wetlands habitat in the Stillwater National Wildlife Refuge, Stillwater Wild-
life Management Area, Carson Lake and pasture, and Fallon Shosone Paiute
Indian Reservation wetlands. In order to meet this objective, the U. S. Fish &
Wildlife Service determined that an annual average total of up to 125,000
acre-feet of water would be needed. Public Law 101-618 required the Secre-
tary of the Interior to acquire by purchase or other means, enough water and
water rights for this purpose. 44

Endangered Species: A primary purpose of the Settlement Act was to fa-
cilitate cui-ui recovery. Public Law 101-618 also has provisions for wetlands
protection (section 206). For example, “water rights acquired under this sub-
section shall, to the maximum extent practicable, be used for direct applica-
tion to such wetlands and shall not be sold, exchanged, or otherwise disposed
of except as provided by the National Wildlife Refuge Administration Act and
for the benefit of fish and wildlife within the Lahontan Valley.” One objective
was to expand the Stillwater national wildlife refuge, with the following aims:
maintaining and restoring natural biological diversity within the refuge; pro-
viding for the conservation and management of fish and wildlife and their
habitats within their refuge; fulfilling treating obligations of the U.S. with re-
spect to fish and wildlife; and providing opportunities for scientific research,
environmental education, and fish and wildlife recreation.

Public Law 101-618 also called for several studies. These included requir-
ing the Secretary of the Interior to study and report to Congress by Nov. 9,
1993, on the environmental, economic and social impacts of the water rights
purchase program for Lahontan Valley wetlands and the Pyramid Lake fish-
ery; on the feasibility of improving the efficiency of Newlands Project con-
veyance facilities; and in consultation with Nevada, on administrative opera-
tional and structural measures to benefit recreation on the Lahontan Reservoir
and the Tmckee River downstream from Lahontan Dam. Also required were
recommendations to Congress by Nov. 26, 1997, on any revisions of the
boundaries of Stillwater NWR to include or exclude adjacent Service and Bu-
reau of Reclamation lands. The Secretary of the Navy, in consultation with
the Secretary of the Interior, was required to initiate a study by Nov. 9, 1991,
of management actions at Fallon NAS that could reduce the need for water
delivery to the Station, with the conserved water to be utilized for fish and
wildlife. The Secretary of the Interior, in consultation with the EPA, Nevada
and other parties, was charged to study and report to Congress (without a
deadline) on the feasibility of using municipal wastewater to improve or cre-
ate wetlands. And Congress directed the Secretary of the Army, in consulta-
tion with the Secretary and other parties, to undertake a study of the rehabili-

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tation of the lower Truckee River for the benefit of the Pyramid Lake fish-
ery. 45

TROA: As required by Public Law 101-618, the Secretary of the Interior
“may not become a party to the operating agreement [i.e. TROA] if the Secre-
tary determines that the effect of such action, together with cumulative ef-
fects, are likely to jeopardize the continued existence of any endangered or
threatened species or result in the destruction or adverse modification of any
designated critical habitat of such species.” Section 7 of the Endangered Spe-
cies Act prohibits Federal agencies from authorizing, funding, or carrying out
activities that are likely to jeopardize the continued existence of a listed spe-
cies or destroy or adversely modify its critical habitat. Agencies consult with
the U.S. Fish and Wildlife Service prior to initiating projects to determine the
project’s compliance. 46 Coordination for TROA under the Fish and Wildlife
Coordination Act (FWCA) has been an ongoing process, including Depart-
ment oflnterior, Fish and Wildlife Service, Bureau of Reclamation, California
Department of Fish and Game, and Nevada Department of Water Resources. 47

How the Settlement Act would affect the Endangered Species Act was a
major issue; when the OCAP freeze was added to the settlement, the House
Merchant Marine and Fisheries Committee members believed that it would
diminish the authority of the Endangered Species Act. Don Barry, General
Counsel for Fisheries and Wildlife on the Merchant Marine and Fisheries
Committee, said that had it been any other bill, they would have killed it.
“The only reason the Committee agreed to back off was because of the
Tribe’s coalition and support. Mr. Barry said that Senator Reid made repeated
personal appeals to key members on the Committee and persuaded them “to
hold their nose” and agree to the bill because it was good for the Tribe. Sena-
tor Reid promised to add language to the bill (210 (b)(9) to protect the Endan-
gered Species Act, and the Pyramid Lake fishery, Anaho Island, and the La-
hontan Valley wetlands would benefit.” 48

E. Clarity of Outcome

There was little documentation alluding to the agreement’s clarity, or lack
thereof, except for a section in the CCC Report that notes a major area of mis-
communication concerning the irrigators’ (secured) right to water. The Report
also notes that the Federal Government does not clearly state to the irrigators
what limit exists regarding the amount of water they can use, thus leaving
them vulnerable to what they perceive as an open-ended process. This is in
addition to their perception that the Tribe’s principle message questions the
irrigators’ fundamental rights to water and articulates the Tribe’s objective of
eliminating diversions from the Truckee River.

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F. Feasibility/Realism

Politically, since the Act was formalized as a Public Law and signed by
President Bush, it is eminently feasible. In addition, given the agreement of
most - though not all - of the parties, the agreement remains feasible. Le-
gally, the Settlement Act is consistent with the Orr Ditch decree; which super-
cedes or includes all other orders for the Truckee River: “[njothing in this sec-
tion shall be constmed as modifying or terminating any court decree, or the
jurisdiction of any court.” 49

G. Public Acceptability

An October 1990 newspaper announcement entitled, “Settlement provides
future drought protection”, noted the following supporters for the settlement:
the Building and Construction Trades Council of Northern Nevada; Ducks
Unlimited, Inc.; the Nevada Wildlife Federation; Carpenters Local No. 971;
the Lahontan Valley Wetlands Coalition; Associated General Contractors; the
Pyramid Lake Paiute Tribe; the Nevada Association of Realtors; the Tbiyabe
Chapter of the Sierra Club; Coalition for a Negotiated Settlement; Sheet Metal
Workers Local No. 26; the Environmental Defense Fund; Economic Devel-
opment Authority of Western Nevada; Friends of Pyramid Lake; Plumbers
and Pipefitters Local No. 350; Northern Nevada Central Labor Council; the
Gaming Industry Association of Nevada; Plaster and Cement Masons Local
No. 241; Greater Reno/Sparks Chamber of Congress; Builders Association of
Northern Nevada; the Lahontan Audubon Society; Nevada Waterfowl Asso-
ciation; Citizens for Private Enterprise; Nevada Landscape Association. 50

In a July 28, 1990 newspaper article entitled, “Reno to Carson March to
Protest Water Bill,” an organizer of the march was quoted as saying that
“marchers will hand out letters to be signed and sent to Congress protesting
the parts of the bill that would dismantle [the] locally controlled TCID in fa-
vor of a Federal agency.” 51 FACTS (Fair Allocation of Carson and Truckee
Systems); a coalition of representatives from TCID, Fallon, Churchill County,
Femly, Citizens for Private Enterprise, the Lahontan Valley Water Users As-
sociation and about 900 members of the Fallon and Shoshone Tribes teamed
up to fight the bill (or to increase their share of the water). Another article de-
scribes their efforts traveling to Washington to lobby Reid for “amendments
that would increase storage in the Lahontan Reservoir, secure more water for
the Stillwater marshes and obtain an additional 900 acres of water rights that
tribal spokesmen say were promised and never delivered.” 52

There is a general perception that the irrigators got a raw deal or, at the
very least, that they lost because they didn’t negotiate. While sometimes the
situation of the farmers was stated in a non- victim-like, less sensationalistic

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manner, this author didn't come across any articles representing an alternative
point of view. The Pyramid Lake Paiute Tribe would not have held this view,
given their belief that the farmers were taking what was not theirs to claim.

The CCC Report outlines the thinking on this perspective. “[The District
presents a typical example of the economic pressures confronted by irrigated
areas that rely primarily on low-value crops. External market pressures create
incentives to leave land fallow or to sell the land and appurtenant water rights.
However, few areas are faced with such an unfortunate location as the irriga-
tors of the Newlands Project under post-Settlement conditions. The irrigators
are squeezed by two water claims that have been able to mount strong politi-
cal and legal claims. To the northwest, the Pyramid Lake Paiute Tribe's long-
term goal is to eliminate all transbasin diversions from the Truckee to the Car-
son. The Stillwater National Wildlife Refuge to the east seeks increased high
quality flows to support the refuge.” 53

IV. CRITERIA: RELATIONSHIP OF PARTIES TO
AGREEMENT

A. Satisfaction/Fairness

Sierra Pacific Power Company: Received the drought protection it wanted
- 40 years - provided it develops the storage capacity to meet future urban
demands. Mr. Faust, the Sierra Pacific Power Company’s lobbyist in Wash-
ington, believes that the settlement is fair to the company and looks forward
to implementing the Settlement Act with the Tribe. 54

California: Received the assurance that its water supplies would be pro-
tected in the future and saw an end to 100 years of water wars.

Nevada: Also received assurance that its water supplies would be pro-
tected in the future (90% of all the water from the Truckee River, no matter
how much growth takes place on the California side of the border).

Fallon Tribe: Pratt notes that they wantedjustice: “If one defines justice in
terms of forthcoming water rights and monetary compensation for past dam-
ages, then justice, in this instance, was served.” 55 A settlement fund was cre-
ated for $43 million, to be allocated over a five-year period beginning in 1992
and to be used for economic development.

Environment and Endangered Species: Also benefited from federal money
authorized to purchase irrigation rights and to promote agricultural water con-
servation for cui-ui recovery, as well as wetlands and wildlife protection.

Farmers/irrigatorsfTCID: The farmers were interested in continuing to
utilize Newlands Project water supplies for irrigated agriculture. They with-

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135

drew from the process when no agreement could be reached. TC1D actively
protested the negotiated settlement because they believed it would reduce the
amount of water for the Newlands Irrigation Project. Mr. Clinton, a Civil En-
gineer and consultant to TC1D, noted that the loser in the agreement is TC1D,
which “took it in the shorts.” 56

Office of Management and Budget (OMB): “OMB considers enactment of
the Settlement Act a defeat of its policies for controlling the terms and costs
of Indian water rights settlements. ..They consistently took the position that
the government had no legal obligation to approve the settlement because the
Tribe’s water rights had been lost by the federal government in the Orr Ditch
Decrees... at the end of the process, OMB officially opposed the settlement
on the grounds of cost only.” 57

Pyramid Lake Paiute Tribe: Wanted enough money and water to maintain
and enhance Pyramid Lake and its fisheries and it received the promise of
both. The tribe is receiving $25 million for the enhancement of its fisheries
and $40 million for tribal economic development. The Pyramid Lake Paiute
Tribe has expressed dissatisfaction that the money is not enough for the
amount of work that is needed, and for the costs of maintaining the lake.

The Tribe commissioned an internal report entitled, “Report with a Re-
view, Opinion, and Recommendations about the “Truckee-Carson-Pyramid
Lake Water Settlement” (Public Law 101-618 Title II, 104 Stat. 3294 No-
vember 16, 1990) through D.C. -based attorneys. The report briefly concluded
that, “the Pyramid Lake Tribe has won a great victory with the Settlement
Act. After more than 20 years of litigation and negotiation that began with the
Tribe’s successful suit against the Secretary of the Interior in the Pyramid
Lake Paiute Tribe of Indians v. Morton , the Tribe has now substantial power
over the use, development, and management of water in the Truckee, Tahoe,
and Carson basins.”

Overall, with the exception of the TC1D, it appears that the involved par-
ties were at least partially satisfied with the fairness of the outcome. The dis-
satisfaction of the TC1D is covered above in sections I. A. and II. A.

B. Compliance with Outcome over Time

The Settlement Act in Section 210 (a)(3) explicitly states that “On and af-
ter the effective date of section 204 of this title, except as otherwise specifi-
cally provided herein, no person or entity who has entered into the Prelimi-
nary Settlement Agreement as modified by the Ratification Agreement or the
Operating Agreement.... may assert injudicial or administrative proceeding a
claim that is inconsistent with the allocations provided in section 204 of this
title, or inconsistent or in conflict with the operational criteria for the Truckee
River established pursuant to section 205 of this title. No person or entity who

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does not become a party to the Preliminary Settlement Agreement as modified
by the Ratification Agreement or Operating Agreement may assert in any ju-
dicial or administrative proceeding any claim for water rights for the Pyramid
Lake Tribe, the Pyramid Lake Indian reservation, or the Pyramid Lake Fish-
ery. Any such claims are hereby barred or extinguished and no court of the
United States may hear or consider any such claims by such persons or enti-
ties.”

It further notes, “Notwithstanding any other provision of law, the operat-
ing criteria and procedures for the reclamation project adopted by the Secre-
tary on April 15, 1988 shall remain in effect through December 31, 1997,
unless the Secretary decides in his sole discretion that changes are necessary
to comply with his obligations, including those under the Endangered Species
Act.”

Miller, in his Nevada Journal article, notes, “...Reid’s law also included a
remarkable and explicit abrogation of Newlands property owners’ constitu-
tional rights to due process, in the form of a seven year ban on legal redress
against any arbitrary and hostile administrative actions taken by the Secretary
of the Interior, of which there have been many.” He further notes that the De-
partment of Interior has gained great leverage in the deal: “One clear example
was the law’s suspension of irrigators’ rights to litigate against Secretary of
the Interior Bruce Babbitt. With no injunctive or legal redress available to
irrigators, the Department of Interior’s Operating Criteria and Procedures -
the rules it imposes on project irrigators - could be institutionalized as a large
hammer with which to convert increasingly ravaged farmers into what Public
Law 101-618 refers to as ‘willing sellers.’”

Litigation involving farmers: TCID filed litigation immediately when the
deadline expired. The U.S. Justice Department filed a lawsuit against the
TCID, demanding the return of over 1 million acre-feet of water that the
farmers had illegally diverted from the Truckee River between 1973 and
1987. The farmers responded with a motion to the U.S. District Court to dis-
miss the Federal Government’s claim for return of the water. Judge Howard
McKibben denied the TCID’s motion, citing the following reasons: 1) a gen-
eral public interest for the government to seek recovery of the water; 2) the
Supreme Court’s acknowledgement of the government’s duty to protect the
Pyramid Lake Paiute Tribe’s interests. The Tribe has continued to litigate
with the TCID following the Settlement Act. 58

Churchill County lawsuit: On December 1, 1995, the county sought an in-
junction in U.S. District Court to prevent the federal government from acquir-
ing and transferring water rights to the Lahontan Valley Wetlands and/or
Pyramid Lake. They called for a more “programmatic Environmental Impact
Study” to assess the cumulative impacts of the federal government’s/Public
Law 101-61 8’s simultaneous actions affecting the Lahontan Valley. In par-

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137

ticular, they claimed that water rights transfers would dry up local aquifers
and adversely affect homes and businesses. 59 Churchill County and Fallon
filed lawsuits in an attempt to block the water buyout program from continu-
ing until a study was conducted on the impacts it would have on the agricul-
tural region. U.S. District Judge Edward Reed, however, dismissed the three
lawsuits in March 1997, saying that the city and county did not show that they
had been harmed or would be harmed by the programs. He also said that local
governments were not the proper parties to sue, but only individuals whose
wells would go dry could sue. 60

Verification of Compliance with the allocations for interstate transfers
made in Public Law 101-618 applicable to each State “shall be assured by
each State. Within the third quarter following the end of each calendar year,
each State shall publish a report of water use providing information necessary
to determine compliance with the terms and conditions of this section.” 61 A
report on the economic, social, and environmental effects of the water rights
purchase program [under Section 206 - Wetlands Protection] was called for,
to be conducted in coordination with the studies authorized in 207 (c)(5) and
subsection 209 (c) of this title. It was required to be reported to the Commit-
tees on Energy and Natural Resources, Environment and Public Works, and
Appropriations of the Senate, and the Committees on Interior and Insular Af-
fairs, Merchant Marine and Fisheries, and Appropriations of the House of
Representatives within three years after enactment. 62

• 207 (c)(5): water rights acquisition program within the cui-ui and La-
hontan cutthroat trout recovery and enhancement program

• 209 (c): the Secretary of the Interior is asked to study the feasibility of
improving the conveyance of Newlands Project facilities to the extent
that, within twelve years after the date of the enactment of this title, on
average not less than 75% of the actual diversions under applicable
operating criteria and procedures shall be delivered to satisfy the exer-
cise of water rights within the Newlands Project. The Secretary of the
Interior shall consider the effects of the required measures achieve
such efficiency on groundwater resources and wetlands in the
Newlands Project area.

Assistant Secretary of Water and Science of the US Department of Interior
Betsy Reike’s testimony on the progress in implementing P.L. 101-618 notes:

So far, the Act is working largely as advertised. The legisla-
tion is not self-implementing but instead establishes a frame-
work of actions, schedules, and incentives designed to lead to
agreements and resolution of new problems. Steady progress
has been made in implementing most parts of the act. 63

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The existence of the organizations and coordination bodies listed above -
as well as the ongoing E1S/E1R - demonstrate that there are funded mecha-
nisms in place to assure and verify compliance with the agreement.

C. Flexibility

The Preliminary Settlement Agreement was modified in Public Law 101-
618 to become the Preliminary Settlement Agreement, as modified by the
Ratification Agreement. In addition, the Settlement Act itself was amended,
with this section concentrating on the latter modification.

The amendments included: a mandate that the Secretary of the Interior re-
coup illegally-diverted Project waters taken by the TCID; an authorization for
Newlands Project water to go to municipal and other uses; an authorization
for the federal government to contract with another agency other than TCID; a
cut of the requested $75 million to $40 million for the Pyramid Lake Paiute
Tribe - $20 million for fishery and $20 million for economic development.
The Congressional Committee on Energy and Water, which reviewed Senator
Reid’s Bill, initiated these changes. 64

The CCC Report notes that the amendments “were apparently specifically
designed to restrict TCID’s ability to litigate, and thereby stall implementation
of the settlement.” (Reid and the Committee on Energy and Water, which re-
viewed the bill, did not want the farmers to be able to stall the implementation
of the settlement.) He also deduces that the actions gave the Secretary of the
Interior leverage to force TCID to improve its irrigation systems. A D.C. in-
sider purportedly suggested that Bush was ready to veto the bill if the provi-
sions were not included. 65

“Reid spokesman Wayne Mehl said Monday he didn’t know why the En-
ergy Committee put in the new provision.” 66 TCID Manager Lyman McCon-
nell: “My reaction was surprise; it was something 1 didn’t expect. ..I think in
some respects it was vindictive. We were trying to protect our interests and
they perceived it as an impediment.” 67 Nor was the Tribe pleased, given that
their allotted funds were reduced $35 million. They said they would fight the
modifications. 68

Recoupment of water from TCID: On December 8, 1995, the U.S. Justice
Department filed a suit in Reno federal district court, on behalf of the Secre-
tary of the Interior, against the TCID. The suit demanded the full return of
approximately 1,057,000 acre-feet of waters diverted from the Truckee River
between 1973 and 1987 in violation of existing OCAPs. It also sought “in-
kind interest.” 69 There was a great deal of coverage of this and the ensuing
rage from farmers in local papers. The general (media) perception seemed to
be that there was foul play and vindictiveness on the part of the Federal Gov-
ernment toward the farmers.

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139

D. Stability/Durability

The Act placed numerous responsibilities on the Department of Interior
and other parties. Betsy Reike, in her testimony to the Senate subcommittee,
noted that implementation began immediately.

Mr. Chairman, the Department of Interior has moved aggres-
sively to implement the Act. A substantial number of specific
tasks required by the Act have been completed; good progress
is being made on most others. In addition, we are taking ac-
tion on many related matters such as examining means to im-
prove the OCAP. There is much more to do such as develop-
ing a creative water right acquisition targeting program and
completing a revision of the OCAP. We are however, ad-
dressing such issues directly and look forward to continued
progress in meeting the goals I identified for you at the be-
ginning of my statement. 70

In this 19 page statement, she notes the Department of Interior’s seven
broad water resource management goals, which stem from P.L. 101-618 and
other underlying responsibilities for the Newlands Project, threatened and en-
dangered fish at Pyramid Lake, and restoration of the Lahontan Valley wet-
lands. These goals are 1 ) to promote the enhancement and recovery of the cui-
ui and the Lahontan cutthroat trout of Pyramid Lake in compliance with the
ESA and the Settlement Act. 2) Protect the Lahontan Valley wetlands from
further degradation and improve the habitat of the fish and wildlife that de-
pend on those wetlands. 3) Encourage the development of solutions for water
requirements in Washoe, Churchill, and Lyon Counties consistent with recov-
ery objectives for the listed Pyramid Lake fishes. 4) Manage the N.P. to serve
water rights efficiently and to meet other authorized purposes consistent with
the above goals. 5) Provide a settlement of water issues related to the FPS
Indian Tribes. 6) Provide for the settlement of water, fish, and other issues
related to the PLP Tribe. 7) Facilitate the apportionment of the waters of the
Truckee River, Carson River, and Lake Tahoe between California and Ne-
vada.

Finally, Reike discusses “Other significant issues” that the Department of
Interior is working on, including: Newlands Project operating criteria and
procedures; assurance of water rights compliance; water rights acquisition
targeting; management of the Newlands Project; the pace of water rights ac-
quisition; broader regional approaches; and federal program management.

United States Fish and Wildlife Sendee: In order to meet the requirement
of a long-term average of 25,000 acres of primary wetland habitat in Lahontan
Valley, the Fish and Wildlife Service, in coordination with the Nevada Divi-

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sion of Wildlife, has been working to acquire a permanent and reliable supply
of water and rights to provide approximately 125,000 acres of water annu-
ally. 71

The U.S. Fish and Wildlife Service released its Draft Environmental Im-
pact Statement, Water Rights Acquisition for the Lahontan Valley Wetlands,
in July 1995. It began public scoping and planning for this in early 1992 and
conducted formal public scoping workshops, bi-monthly public meetings and
informal agency meetings. After an extensive comment period, the Final En-
vironmental Impact Statement (FEIS) was due to be issued in September
1996. 72

Based on the comments received (which were issued on time), the report
laid out five alternative actions. It included a required “no action” baseline
condition (Alternative 1) and proposed action (Alternative 2). Alternatives 2-5
would meet the Public Law 101-618 objective of sustaining 25,000 acres of
primary wetland habitat. 73

The Service has also been involved in administering part or all of the fol-
lowing provisions of Public Law 101-618: Section 106; Section 206(a)(3);
206 (b); 206 (b)(2); 206(b)(3); 206(e); 206(c), (d), (g). These include such
tasks as eliminating the toxic flows of Hunter Drain within the Refuge
Boundary and managing the Stillwater NWR wetland habitat. They are also
heavily involved in the cui-ui recovery plan.

The Bureau of Indian Affairs has responsibilities to comply with obliga-
tions in Public Law 101-618, attachment to Rieke’s testimony.

Interior Settlement Strategy Group: Composed of representatives from the
Bureau of Indian Affairs, the Fish and Wildlife Service, and the Bureau of
Reclamation, this group aimed to coordinate implementation of the many pro-
visions of the Settlement Act. Its first task was to prepare a set of status re-
ports on each of the 3 1 actions identified and authorized under the Settlement
Act. The reports included the Department of Interior’s perspective on the le-
gal relationship and implications of each action. The group solicited help from
government agencies, the public, and the Pyramid Lake and Fallon Tribes in
identifying potential conflicts and ways to resolve these conflicts which
would assist in achieving the purposes of the Settlement Act. 74

Ongoing Dispute Resolution Forums: This author has not come across any
“ongoing forum”, though it is clear that the Truckee-Carson Coordination Of-
fice (TCCO) plays an instrumental role, coordinating various agencies within
the Department of Interior. Bill Bettenberg, the Chief Negotiator for the De-
partment of Interior, seems to be a focal point for carrying forward various
sets of negotiations, i.e. the TROA, the WQA. It seems as though each proc-
ess (and sub-process) identifies their own mechanism. It appears quite decen-
tralized.

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141

For interstate allocations, U.S. District Courts have jurisdiction to hear and
decide claims of aggrieved parties. The Alpine Court has jurisdiction over and
administration of interstate transfer issues.

“The U.S. District Courts for the Eastern District of California and the
District of Nevada have jurisdiction to hear and decide any claims by any ag-
grieved party against the State of California, State of Nevada, or any other
party where such claims allege failure to comply with the allocations or any
other provision of this section.”

The WQA established an alternative dispute mechanism to deal with con-
tentious issues relating to water quality standard issues. 75

Indicators of Instability can be found in some of the litigious actions taken
by the TCID and others after the ‘time out’ period expired. Despite their
losses in court, there are indications that the TCID continues to be involved in
litigation with the Tribe. Please see section IV.B. for more details.

V. RELATIONSHIP BETWEEN PARTIES

A. Reduction in Conflict & Hostility

Is situation escalating or de-escalating?

At the stage of this writing, it is difficult to authoritatively say whether
there has been a reduction or escalation in conflict and hostility. For the most
part it appears that the relationships between the parties are professional, with
a culture of negotiated settlement taking hold. However, given that some par-
ties are dissatisfied with the end result - and given the professional restraint
that colors their statements - this author feels that it is too early to do anything
but “wait and see.”

De-escalating views: Senator Reid states, “Earlier in my career I ended
100 years of water battles between California and Nevada by creating the
Truckee-Carson-Pyramid Lake Negotiated Water Settlement... This settlement
created a model that has been used for the settlement of dozens of other water
disputes throughout the century.” 76

“This effort [Reid’s settlement negotiations] was successful in bringing a
number of parties together to develop mutual agreements on a series of
Truckee River storage, management, and conservation issues; on interstate
allocations for the Truckee and Carson rivers and Lake Tahoe; and on restora-
tion of Lahontan Valley wetlands.”

“A broad coalition of regional interests formed in support of these agree-
ments, which provided the basis for the legislative proposals ultimately en-

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acted as Public Law 101-618... the Department of the Interior endorsed the
agreements and helped shape the final legislation.” 77

"The 1990 passage of the federal Truckee-Carson-Pyramid Lake Water
Rights Settlement Act marks a recent milestone for the Truckee River.
Among other things, the act achieved an interstate allocation of the water re-
sources, a goal both Nevada and California have pursued for many years...” 78

Escalating views:

...But as current events are demonstrating, that legacy, rather
than an end to western Nevada water wars, is turning out to
be a great deal more conflict - and veiy bitter conflict at
that. 79

This view proposes that, in many ways, rather than legislation that actually
settled western Nevada water wars, Public Law 101-618 appears instead to
have been largely a new and more sophisticated (or, vis-a-vis the general pub-
lic, deceptive) offensive in those same old wars. In this view specifically, it
was an effort to divide up Newlands Project irrigation water for the benefit of
an organized coalition of opposing interests. Rather than initiating an era of
water peace in the Sierras, this view considers the law as simply an occasion
for the deployment of what they say might be described as an entirely new
generation of water warfare weaponry, strategy and tactics. 80

Jim Bentley, spokesman for FACTS, criticized Reid for
claiming his bill would end 80 years of water wars. “It does
settle the allocation of water between California and Ne-
vada,” Bentley said, “and it does offer to dismiss a rather
vague and untested claim by the Pyramid Lake Tribe, But
other than that, it doesn't settle anything.”

B. Improved Relations

With the lack of clarity regarding the escalation or de-escalation of this
conflict, it may be premature to determine whether or not there has been an
improvement of relations between the parties. While some improvement in
interpersonal relationships may have occurred, it would be precipitous to ex-
pand this to the larger community, especially given problems of ripeness and
re-entry.

C. Cognitive & Affective Shift

A new attitude engendered by the Preliminary Settlement Agreement led
to the Pyramid Tribe being asked to appoint a tribal representative to sit as a

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143

voting member of the new Water Planning Commission of Washoe County -
an approach of participatory problem solving rather than adversarial encoun-
ters. “The local community decided on its own that it was better to work with
the Tribe from the outset and to try to find ways of addressing water issues
that would benefit the system as a whole, or failing that, at least would not
harm the downstream interests of the Tribe, than to proceed on its own and
risk more adversarial encounters. We are not aware of any similar arrange-
ment between local government entities and an Indian tribe.” 82

The Pyramid Lake Paiute tribal newsletter noted a change in understand-
ing of the relationship between the environment, economic development, and
quality of life:

In working on implementing the Settlement Act, it is difficult
to change a general mentality that making a profit by sacrific-
ing various aspects of the environment is good. However on
the other hand there has been an increased awareness that
protecting the environment is a key objective in economic
development. Awareness has also started to become a role in
evaluating quality of life through indicators. Quality of life
indicators should be based on resource availability. The chal-
lenges we face regionally, and nationally, should be accepted
together to accomplish a quality environment. An understand-
ing of limitations for resource availability should account to-
wards the level of development the environment can afford. 83

D. Ability to Resolve Subsequent Disputes

In her feasibility study for the Second-Generation Negotiations, the media-
tor noted:

Based on the interviews conducted, it is clear that there is a
strong desire to resolve remaining issues surrounding imple-
mentation of Public Law 101-618. All parties expressed the
preference to do so through negotiation rather than continued
litigation, although parties also feel a significant and under-
standable degree of skepticism about the difficulties involved.

Overall, people express a deep and genuine desire to... de-
velop a shared concept for how to live in this region together
and as neighbors.

She also cites the exchanges between Lahontan Valley residents and members
of the Pyramid Lake Paiute Tribe as an inspirational example.

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Another significant development is the investment by people
in the Lahontan Valley to establish the new linkages between
themselves needed to talk about their goals for the future and
to plan for these negotiations. The broad-based public partici-
pation which characterizes this work can only strengthen the
community and help them take on their responsibilities for
participation in solving regional issues in a new way. The La-
hontan Valley Environmental Alliance [LVEA], created by
formal agreement of the local governments, the TCID and the
two conservation districts is developing the capacity to repre-
sent more diverse needs in the valley than have been part of
previous negotiations, while maintaining the active involve-
ment of the agricultural interests that remain at the heart of
the community.

The Truckee River Chronology: Part III also notes:

This Lahontan Valley Environmental Alliance signified a
more community-wide effort to negotiate a settlement to out-
standing water issues and to maintain a viable agricultural in-

dustry in the region.

Increasing shift towards negotiation versus litigation

“Litigation ends communication, doesn’t it. Has your attorney ever told
you not to communicate with the other side? He probably told you he did not
trust what your adversary would do with the information. What he really
meant was that he did not trust you not to blow a perfectly good legal argu-
ment. As negotiators we learned to see the issues through each other’s
eyes ...” 86

Successive rounds of negotiations indicate an intractable problem or
comfort level of the parties in dealing with one another; a good relation-
ship able to handle new conflicts?

The successive rounds of negotiations, particularly the Second-Generation
Negotiations, would appear to reflect an intractable problem. At the same
time, there seems to be a culture of negotiation developing, and parties and
people interested to participate.

In a public statement sent out by the TCCO and signed by representatives
of the Conservation Caucus, Fallon Shoshone Paiute Tribe, Lahontan Valley
Environment Alliance, Newlands Water Protective Association, Pyramid
Lake Paiute Tribe, and Sierra Pacific Power Company, and the Carson Water
Subconservancy District:

“Although the parties to the negotiation have not reached agreement on
many difficult issues including wetlands, recoupment, operating criteria and
procedures for the Newlands Project, and municipal and industrial water sys-

The Pyramid Lake Case

145

terns, the parties will continue efforts on these and other issues, building on
the knowledge and relationships gained in these negotiations.

The WQA seems to be held in high esteem, as a negotiated
settlement rather than litigation, to solve outstanding issues
from Public Law 101-618 regarding water quality. “This set-
tlement is a remarkable accomplishment and another example
of the Clinton Administration’s commitment to hammering
out local, on-the-ground, common sense solutions to long-
standing and contentious problems,” said Secretary of the In-
terior Bruce Babbitt.

“This agreement demonstrates that our environmental prob-
lems can be solved through the cooperation of citizens and
their representative government,” said Lois Schiffer, Assis-
tant Attorney General in charge of the Environment and
Natural Resources Division.

“With the participation of all, we now have a solution that is
win- win- win: for the environment, for Nevada’s local com-
munities, and for the Pyramid Lake Paiute Tribe,” said EPA
Regional Administrator Felicia Marcus.

“The signing of this agreement is another milestone of cooperation among
users of the Truckee River,” said Ada Deer, Assistant Secretary of the Interior
for Indian Affairs. “This is truly a situation where all the parties involved,
including the residents of the Truckee Meadows, the Pyramid Lake Paiute

Tribe, and fish and wildlife will benefit from this agreement.”

“From an Interior viewpoint, recent years have seen a marked improve-
ment in people working together to solve mutual problems and take cogni-
zance of both mutual and divergent interests in the agreements. The recent
successes of with the new O & M contract with TCID and the Truckee River
Water Quality Settlement are examples; substantial headway is being made
with regard to TROA and a second set of negotiations with the Fallon
Tribes.” 88

Calling a mediator back in, exchanging representatives

The successive attempts to negotiate with the farmers and bring them into
the process are well known. In Department of Interior Betsy Reike ’s testi-
mony to Congress, she noted that the Bureau of Reclamation was ready to
take over the Newlands Project if the farmers could not negotiate a new con-

• 89

tract to operate it.

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Any evidence that ongoing problems in the relationship are being
handled in a constructive manner?

The WQA, the TROA, and the various other contracts that have emerged
are all deemed (relatively) successful by various parties (though interpretation
seems to differ widely on criteria for success). Still, the ways in which they
are being designed and implemented reflect increasing emphasis on negotia-
tion (rather than facilitation, which the parties seem not to have rated as
overly helpful), public meetings and scoping sessions, etc.

The proposed settlement of a lawsuit involving the Reno-
Sparks sewer treatment plant is great news. It continues the
spirit of compromise fostered by the Negotiated Settlement,
replacing water wars with mutually agreeable decisions to re-
distribute our most precious resource. Again, Everyone bene-
fits ... 90

E. Transformation

“We have not settled everything on the Truckee yet, but we
are working on additional areas. Our efforts are aimed at
moving forward but not allowing any linkage that would
undo the progress we have already made. The strategy is a
continual building on what has been accomplished so far .” 91

Most people seem to speak of the case not in transformational terms, but
as setting a precedent for indigenous peoples, the environment, and endan-
gered species. The CCC Report describes how a relatively powerless minority
(Indian tribe) was able to influence the water allocation process through an
assertion of federal environmental laws and tribal trust responsibilities. Litiga-
tion was successfully pursued to change the balance of power among major
water users in the basin and to reallocate water in favor of protecting Pyramid
Lake and its endangered fish.

The Pyramid Lake Case

147

VI. SOCIAL CAPITAL 92

A. Enhanced Citizen Capacity to Draw on Collective Poten-
tial Resources

1. Aggregate of Resources

By late 1996 there was some indication that financial resources needed to
implement the agreement had begun to flow. The EPA announced a change in
its clean water loans to allow the use of loan funds to buy water rights. This
change, announced shortly after the agreement was signed, allowed the local
government, state agencies, and others to buy irrigation rights from farmers
and to return the water to the Truckee River and Pyramid Lake. The same
article notes that while the farmers felt “barred” from the process, at least 900
owners of water rights were expected to sell, removing over 5,000 acres of
farmland from production.

Another potential resource may stem from the installation of water meters
throughout the Reno/Sparks area. While the documentation leaves the issue of
who pays for their installation unclear - perhaps pointing to Federal sources -
their impact on the ability of the region to control its own water use and costs
during drought years may provide a resource for future litigation, or simply
for civic pride. If one can measurably demonstrate changes in behavior - and
the resulting savings - then one can reasonably use this to power new efforts
in unrelated areas of civic life. Resource power, whether it is an increase in
flows on the river or civic pride and ability, has improved somewhat for al-
most all of the stakeholders and associated parties, with the notable exception
of the irrigators as represented by the TCID.

2. Potential Assistance Relationships

One clear new relationship that has formed is the Truckee River Partner-
ship, formed to oversee the application of the new water allocation policy.
Covered in more detail below in section B, this body represents an official
continuance of some of the unofficial relationships that were created through
the mediation process. Other relationships are not clear, although there is evi-
dence of ad-hoc arrangements from the region’s handling of recent flood con-
ditions as well as the collaboration between multiple groups to re-seed trees
on the riverbanks and to regenerate endangered fish species. 94

Another indicator that new relationships have grown - though perhaps not
to their full potential - comes from an overview of attempts to manage the

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Truckee River Basin from 1980 through the 1990s. While some of this ex-
amination may not cover all of the negotiated settlement, Cobourn notes that
despite the large number of projects and the high level of involvement, the
nature of that involvement is still not coordinated enough to be considered
integrated. 95

Part of the improvement in relationships may in fact come from the set-
tlement negotiation process itself. However, it may be argued that the changes
in goal setting and accommodation, as well as the willingness to work to-
gether, may stem from changed attitudes and perceptions within the general
public, public servants, and industry toward both the environment and the
rights of Native Americans to their heritage and resources. At this point, given
the ongoing status of the settlement negotiations and the numerous court cases
being filed, it may be premature to state that all of the parties are willing to
work together, though many of them have demonstrated an ability to do so on
certain projects.

3. Generalized Reciprocity

Despite some indication that the parties have embraced ideas of general
reciprocity in the implementation of the TROA, there are mixed signs that
goodwill and trust remain. On the positive side, there was a statement by the
Tribal Chairman that despite the fact that the State Engineer granted all unap-
propriated water to the tribe, it “knows it has to continue its work to address
the Truckee’ s many competing demands.” 96

However on the other side of the coin, the Pyramid Lake tribe incurred the
wrath of the Nevada State Department of Conservation and Natural Re-
sources. The tribe requested that the Interior Department block the State’s
takeover of Carson Lake unless the State accedes to the Tribe’s demand that

83 percent of water it purchased be used for wetlands conservation.

B. Increased Community Capacity for Environmental/Policy
Decision-Making

1. Aggregate of Resources

The most noticeable effect of an increase in the aggregate of resources is
the aforementioned Truckee River Partnership. As detailed below, the organi-
zation is given the task of implementing and guiding new water policies.
However, the extent of participation, openness of the decision-making proc-
esses, and the inclusion of all of the stakeholders is unclear at this time. The
creation of the partnership can, however, be seen as a concrete positive effect

The Pyramid Lake Case

149

of the negotiation process; especially one that is designed to provide a forum
for conflict resolution regarding the distribution of benefits and impacts of the
settlement agreement.

2. Increased System Efficiency

As noted above by Cobourn, although there has been an increase in inter-
est and participation in water management on the Truckee River, there is little
evidence that systemic efficiency has increased. In fact, an article detailing the
willingness of the U.S. Bureau of Reclamation to take over the Lake Tahoe
Dam in order to preserve the TROA angered locals who see the unilateral ac-
tions of the government as having a dampening effect on confidence and on
the agreement itself. Another example was the February 14, 1999, require-
ment that the Environmental Impact Statement be redone in order to address
new impacts of the agreement. 98

3. Increased Capacity for Cooperation

There has been some indication that groups of stakeholders have come to-
gether to form associations or organizations designed to allow broader par-
ticipation in decision making processes. As noted by the New York Times on
November 30, 1997, one effect of the implementation of the Truckee River
accord has been the creation of the Truckee River Partnership, a group of
business, environmental, and government representatives charged with guid-
ing the new water allocation policy. Interestingly enough, although this article
indicates that the farmers of the Newlands project have been isolated, the rest
of the water-using community - including the formerly castigated Paiute
Tribes - has come together in a new alliance of interests. Namely, they share
the goal of taking some of the farmers’ huge share of the water.

4. Increased System Capacity for Responding to External Challenges

There is some indication that the regional ability to deal with drought and
flood conditions has improved through the negotiation process. As with many
of the other measurements of social capital, it is difficult to trace the im-
provement to the existence or the process of the negotiated settlement.

5. Increased Information Flow

Some increased information flow has been noted with respect to the
Washoe County Regional Water Planning Commission. The Commission,
which continues to have an interest in the ongoing settlement negotiations,

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posts information including meeting minutes on its public access website.
However, among the other parties to the negotiated settlement, only the city
of Reno and the Sierra Pacific Power Co. maintain websites, and these are
primarily devoted to public relations rather than informational purposes. Al-
though there may be public service announcements and inter-party communi-
cations, the author is unable to ascertain at this time their level or whether the
information flow has substantially increased following the negotiated settle-
ment.

C. Social System Transformation

Accessing social system transformation depends on what is included in
this category. One could say the SPWC is a part of the social system and that
it has undergone a form of transformation. One could also say that the gradual
change in community views towards water use, the environment, and Native
Americans spurred the change in power relationships between the Tribes and
the irrigators, leading to the settlement. In addition, if one views the context
of the social system to include the preference for litigation over less adversar-
ial forms of dispute resolution, then this author must assert that there has been
little in the way of major social system transformation. However, within the
parameters of the Guidebook definition, there have been some improvements
and changes that could constitute minor to mid-level social transformations.

1. Assistance and Support Provided to General Community

As noted above in section III.A the negotiated settlement has provided an
influx of capital to the tribal communities and to support institutional ar-
rangements for continued water management. Additionally, according to
promotional literature, the Sierra Pacific Power Co., through a subsidized
foundation, provides between $700,000 and $1,000,000 annually for cultural,
educational, and community building projects." It is unclear whether this is
generally driven by public relations or has been affected by improved rela-
tions with the Tribe and the local communities, but the latter is quite likely.

2. More Resilient Social/Political/Economic System

It seems quite clear that the negotiated settlement does not provide for a
more resilient social/political/economic system. Many instances of this are
provided by the ongoing litigation both to implement the settlement, and to
oppose the settlement by included and excluded parties. One article in the
Reno Gazette- Journal notes that of the many things the negotiated settlement
does not do, one important one is that it fails to “[sjettle legal battles among

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151

the tribe, the federal government and the Newlands Reclamation Project .” 100
In addition, the same newspaper reported that Lake Tahoe residents were con-
sidering a lawsuit to address reservoir management under the negotiated set-
tlement. Their grievances stem from the fact that during the flood year, man-
agers kept Lake Tahoe’s water levels high, refusing to allow extra runoffs
even though the higher levels were causing erosion and damage to waterfront
properties . 101

3. Increased Civic Discourse

There are mixed results in this category. On the one hand, it is difficult to
find information stating that the current negotiations are held in public view,
despite calls for them to be opened. It does appear, however, that while access
to the actual negotiations may be limited, their results and reports are gener-
ally available on websites or during public review sessions . 102 There are also
indications that Sierra Pacific has attempted to improve its image, although
this may be mostly a public relations campaign rather than an effort to estab-
lish dialogues on issues of community concern . 103

Despite these improvements, the continuation of the negotiations to im-
plement the TROA, as well as continued litigation related to water manage-
ment indicates that while civic discourse has increased overall, intra-party
discourse is still running much higher than inter-party discourse, especially
when the federal government or the irrigators are involved.

4. Perceived Interdependence

In the area of perceived interdependence there were signs of recognition
by both Sierra Pacific and by the leadership of the Pyramid Lake Paiute Tribe.
However, this does not seem to have extended too far beyond the realm of
recognized ‘shared interests,’ into the deep-rooted recognition that the actions
of one party will have an effect upon all of the others.

5. General Trust

In the area of general trust, this author would have to state that although
some level of trust may have been achieved, the process of the settlement ne-
gotiations - and the departure of the TCID - did little to improve overall trust
in the region. Instances of continued litigation - between the Tribe and the
State as noted above, and between the farmers, State legislative representa-
tives, and backers of the settlement - show a general lack of trust and a will-
ingness to continue litigation as the best means for either obtaining objectives
or forcing opponents to the table. In the second case, Assemblywoman Marcia

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de Braga (D-Fallon) submitted an assembly bill that would have scuttled the
provisions of the negotiated settlement. This prompted Senator Reid to reopen
negotiations and provide funds for the Tribe to purchase another $7 million in
water rights from Newlands farmers. 104

This latest agreement might be taken as an indicator of increased general
trust, but this author would deem that trust still to be quite tenuous given the
manner in which the negotiations were impelled.

CONCLUSION

Overall, there seemed to be several major themes carried in the local pa-
pers throughout the negotiating process - both for the negotiated settlement
and the mediated talks. One of the most prominent, especially in Gazette-
Journal editorials, was the admonition to the TCID to continue negotiating
and to get the best deal it could, instead of walking out, stalling, or “con-
tinuing] to believe that. ..[it] is 1940 and not 1990.” 105 This admonition was a
clear recognition of a shift away from the farmers in both power and moral
authority. By contrast, much of the literature from the TCID, Newlands Water
Protection Association, and residents of Fallon charge that the main problem
with the negotiated settlement is that it provides yet another example of the
federal government ‘muscling’ its way in and ordering people around, a
common sentiment in the U.S. west and mid-west. Therefore, it is reasonable
to conclude that, despite the many steps that the negotiated settlement has
taken forward, the processes surrounding it have failed to include all of the
parties or to create a resolution or future process that is likely to satisfy all of
their concerns.

NOTES

1 Committee on Western Water Management, Water Science and Technology Board, Commis-

sion on Engineering and Technical Systems, Board on Agriculture, National Research
Council, Water Transfers in the West (Washington, D.C.: National Academy Press, 1992),
119-136; A. Dan Tarlock, Symposium: Case Study on Regulatory Integration: Water Policy
and the Protection of Endangered Species in the Truckee-Carson River Basin “The Creation
of New Ricks Sharing Water Entitlement Regimes: The Case of the Truckee-Carson Settle-
ment,” 25 Ecology Law Quarterly 674 (1999).

2 California Division of Water Rights Atlas, p. 65

3 AMP, November 1990, p. 17

4 Editing to a standard case format, and additions of criteria under category six, Social Capital,

were done by Landon Hancock.

The Pyramid Lake Case

153

5 Accounts differ as to whether or not the irrigators “walked out” or whether they decided that,

despite their willingness to negotiate, the Reid dialogues did not offer a productive venue
for them to move forward. Newspaper accounts indicate the former while interviews
strongly indicate the latter; with a Clearwater Consulting Corporation report falling some-
where in the middle.

6 The Dept, of Interior had to sign any agreement before Congress would approve it.

7 The effectiveness of the Agreement was seen as contingent upon the US government becom-

ing a party to it. See Article III, Par. 29 (g).

8 Jeremy Pratt, “Truckee-Carson River Basin Study: Final Report” (Seattle: Clearwater Con-

sulting Corporation), 194.

9 Ibid. p. 119.

10 Reid letter, August 1 1, 1990; Also “Time running out on northern Nevada water pact” 'It’s
your turn’ in Reno Gazette-Journal, August 6, 1990.

11 Jeremy Pratt, “Truckee-Carson River Basin Study: Final Report”, p. 1 19.

~ As an example, contingencies were placed on several aspects of the legislation. Many of the
Agreement’s provisions were contingent upon the final resolution of the Pyramid Lake Pai-
ute Tribe’s claims; others were contingent upon the settlement of the Tribe's lawsuits
against the State of California. Many of these issues were later dealt with.

13 Bob Pelcyger, the attorney for the Pyramid Lake Paiute Tribe, has noted that the Tribal
Council has always rejected the concept of commoditizing the land. Their overwhelming
value is to protect the lake - what was given to them and is part of them. They don’t feel
themselves as owners, but as the lake were given them to take care of. (Healing the Water)
The historic and symbolic meaning of the lake to the Tribe can also be illustrated by the fact
that they have folklore common to the members. “We the Paiute People have always been
taught to share the water. To take what is needed and not waste what has been placed here
by Almighty God. We are told not to fight and argue over our water. Water is life, our life is
water. To believe this way is to live this way. Our water is placed here for all of us, but we
cannot forget that our Mother Earth creates this water and needs this water for her own sur-
vival. This way of life is all we have, this belief in water is all we have. We cannot let this
slip away by compromising our future. Water is the key to life and all of depending on our
water resource should be able to share what is available and decide if building out until
there is nothing left is a way to sustain a livable environment.”

14 Mervin Wright Jr. in Pyramid Lake Paiute Tribe's Newsletter, (December 1994): 4-5.

13 In the CCC Report, a case study with extensive interviews characterizes the farmers’ treat-
ment as one of alienation, and that they have generally been scapegoated. The irrigators
hold the view that they are only doing what society asked them to do and praised them for
doing in the past. The CCC Report implies that the shift in cultural and societal values from
“settling the frontier” towards environmental and Native American sensitivity is at the root
of the problem whereby the irrigators have not been given equal consideration.

16 Jeremy Pratt, “Truckee-Carson River Basin Study: Final Report”, p. 192.

17 US Dept of Interior and California Dept of Water Resources, "Draft Environmental Impact
Statement/Environmental Impact Report for the Truckee River Operating Agreement,” (US
Dept of Interior and California Dept of Water Resources, 1998): 5-7. Chapter 5 “Consulta-
tion and Coordination” describes the process in detail, beginning with the formal public
NEPA/CEQA scoping where a publication of a notice of intent in the Federal Register on
July 21, and preparation on July 27, 1991, was accompanied by a press release issued from
Reclamation’s Mid-Pacific Regional Office. These announced the locations and times for
public scoping meetings. Attended by about 130 people over 4 days in 5 locations, com-

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ments were recorded and presented to the public an open scoping session held in Washoe
County chambers on December 10, 1991.

18 Ibid., Chapter 5, p. 10.

19 Jeremy Pratt, “Truckee-Carson River Basin Study: Final Report”, 3.

20 TCID comments on the Draft EIS/EIR of TROA. Prepared by Russell P. Armstrong, April

27, 1998 and sent to David Overvold. Copy obtained from Mr. Armstrong. Cite from page
4.

21 Russ Armstrong of the TCID, in this comment, goes on to note that there were no minutes of
the meetings. (This was independently verified, for when the author spoke with Bill Betten-
berg, chief negotiator for the Department of Interior, he mentioned that they were very in-
formal processes, and minutes were not kept, and agendas not formally made.)

“ Tom Riggins, “Farmers Being Abused,” Letters to the editor, Reno Gazette-Journal, August
29, 1990.

23 Editorial "Next Time, How About Making Talks Public?” Reno Gazette-Journal, August 9,

1996.

24 Signatories include the Pyramid Lake Paiutes, Sierra Pacific Power Co., the States of Nevada

and California, and the Department of the Interior.

“ 5 Sierra Pacific Power Company, “1995-2015 Water Resource Plan” (Sierra Pacific Power
Company, 1995), 8-87.

26 Ibid.

27 Ibid., 9-10.

28 Ibid., 11.

29 Healing the Water, Viewer’s Guide.

30 Jeremy Pratt, "Truckee-Carson River Basin Study: Final Report,” 82.

31 See Section IV. A. for more details.

32 Public Law 101-618 Section 206 (2)(d).

33 Ibid., Section 708 (a)(2).

34 Ibid., Section 708 (3).

35 Ibid., Section 708 (H)(2).

36 US Dept of Interior and California Dept of Water Resources, “Draft Environmental Impact

Statement/Environmental Impact Report for the Truckee River Operating Agreement,”
Chapter 5, p. 3.

37 Mervin Write, Jr., Water Resources Director [later Chairman], Pyramid Lake Paiute Tribe
Newsletter (December 1994): 2.

38 Healing the Water, Viewer's guide.

39 Christensen, High Country News, April 3, 1995. For similar views, see Section V.

40 Paragraph 206 (c )(3).

41 Sierra Pacific Power Company promotional literature.

42 Nevada Division of Water Planning, Truckee River Chronology Part III - Twentieth Century

(Department of Conservation and Natural Resources, May 7, 1998).

Available from http://www.state.nv.us/cnr/ndwp/truckee/truckee3.htm .

43 Sierra Pacific Power Company, 1998, p. 1 1 .

44 Nevada Division of Water Planning, Truckee River Chronology Part III - Twentieth Century,

1998.

45 Digest of the Federal Resource Laws of Interest to the US Fish and Wildlife Service.

46 US Dept of Interior and California Dept of Water Resources, "Draft Environmental Impact

Statement/Environmental Impact Report for the Truckee River Operating Agreement,”
Chapter 5, p. 2.

The Pyramid Lake Case

155

47 Ibid.

48 Pyramid Lake Paiute Tribe’s commissioned report, p.21.

49 Public Law 101-618, Sec.204(c)(3)(h); Truckee River General Agreement Courts; Prelimi-
nary Settlement Agreement as modified by the Ratification Agreement. It is additionally
stated in Public Law 101-618 that nothing in the (particular) section is to be inconsistent
with Nevada and California State Law(s).

50 Advertisement/Public Service Announcement in the October 16, 1990 Reno Gazette-Journal.

Paid for by Westpac Utilities (later Sierra Pacific).

51 “Reno to Carson March to Protest Water Bill,” Gannett News Service, July 28, 1990.

32 John S. Miller, “Ranchers, Indians Fight Truckee Bill,” Reno Gazette-Journal, January 24
1990.

53 Jeremy Pratt, “Truckee-Carson River Basin Study: Final Report”, 191.

54 Pyramid Lake Paiute Tribe’s commissioned report, p. 23.

55 Ibid. p. 123.

36 Pyramid Lake Paiute Tribe’s Commissioned report.

57 Ibid. p. 16.

58 Nevada Division of Water Planning, Truckee River Chronology Part III - Twentieth Century,

1998.

Ibid.

“3 Suits Over River Rights Thrown Out,” Sacramento Bee, March 5, 1997.

Public Law 101-618, Section 704 (d) (1).

This was in fact completed as submitted as a Report to the U.S. Congress in November 1993
- Water Rights Acquisition Program for Public Law 101-618 and Lahontan Valley Wet-
lands, Nevada.

63 Betsy Rieke, Testimony p. 1.

64 Jeremy Pratt, “Truckee-Carson River Basin Study: Final Report,” 123

65 Ibid.

66 Reno Gazette-Journal, July 17, 1990.

61 Ibid.

68 Ibid.

69 Nevada Division of Water Planning, Truckee River Chronology Part III- Twentieth Century,

1998.

70 Statement of Betsy Reike to Senate subcommittee, p. 19.

71 Fish and Wildlife Service Response to the Committee’s Request for Specific Recommenda-
tions Regarding Aspects of the Newlands Project and the Truckee-Carson Pyramid Lake In-
dian water Rights Settlement Act.

72 Nevada Division of Water Planning, Truckee River Chronology Part III- Twentieth Century,

1998.

73 Ibid.

74 Bureau of Indian Affairs attachment to Rieke" s testimony.

75 Department of Justice press release, October 19, 1996.

76 Senator Reid’s Website, http://www.senate.gov/~reid/

77 Reike testimony, p.3.

78 California Department of Water Resources, Truckee River Atlas (California Department of
Water Resources, 1991): iii.

79 Steve Miller, “Harry Reid Sows Dragon’s Teeth, Turning Nevada Farmland Into Desert,”
Nevada Journal 4, no. 12 (1997). Electronic journal copy at http://www.nj.npri.org/nj97
/12/cover_story.htm

156

Chapter Five

80 Ibid.

81 Reno Gazette-Journal, January 24, 1990.

82 Comments of Pyramid Tribe in Jeremy Pratt, “Trackee-Carson River Basin Study: Final
Report”, 77.

83 Pyramid Lake Paiute Tribe Newsletter, December 1994, p.2

84 Gail Bingham, “Findings and Recommendations on Convening Second Round Truckee/
Carson Settlement Negotiations,” (Washington DC: RESOLVE Inc., 1994), 8.

83 Jeremy Pratt, “Truckee-Carson River Basin Study: Final Report”

86 Oldham, “Truckee River Communication Process”, p.2.

87 Department of Justice press release, October 10, 1996.

88 Notes on draft CCC report (Pratt) by Department of Interior, Draft Report, p. 193.

89 Jeremy Pratt, “Truckee-Carson River Basin Study: Final Report”

90 Reno Gazette Journal, May 19, 1996.

91 Oldham speech, Truckee River Settlement, p. 1 1 .

92 This section was written by Landon Hancock after the Social Capital section was added to

the Guidebook (see Appendix A).

93 “Novel Use of Clean-Water Loans Brightens Outlook For a River,” New York Times, A25,

October 31, 1996.

94 For examples see Lou Cannon, ‘“Low-Tech" Effort Aims to Return Massive Trout to Nevada

Waters,” Washington Post, A3, April 19, 1998; Jon Christensen, “River in Nevada Helps Its
Own Restoration,” The New York Times, C4, September 24, 1996; and Sean Whaley, "Bab-
bit Weaves Fish Story,” Las Vegas Review- Journal, B7, August 14, 1998.

95 J. Cobourn, “Integrated Watershed Management on the Truckee River in Nevada,” Journal

of the American Water Resources Association 35, no. 3 (1999): 623-32.

96 “Engineer Approves Tribe’s Applications for Unappropriated Water,” Associated Press State

& Local Wire, December 7, 1998.

97 "Truckee Water Pact Hits New Snag,” Associated Press State & Local Wire, February 14,

1999.

98 Ibid.

99 From Sierra Pacific’s Community Relations section of its Internet home page,
www.sierrapacific.com.

00 From a sidebar article attached to: Faith Bremner, "Truckee River Fight Reopens Unappro-
priated Water Dispute,” Reno Gazette-Journal, November 1 1,1997.

101 Jeff DeLong, "Lake-River Citizen Group Hints at Lawsuit to Force Better Management of
Lake Level,” Reno Gazette -Journal, November 1 1 , 1997.

102 For one example, see the website for the Washoe County Dept, of Water Resources at
http://www.co.washoe.nv.us/utilities/meetings.htm

103 For more information see the company’s website at http://www.sierrapacific.com

104 Brendan Riley, “Lawmakers Give Details of Truckee River Water Deal,” Associated Press
State & Regional Wire, April 16, 1999. In addition, the State of Nevada pledged $4 million
and Sierra Pacific $2.5 to help set up the Newlands Project Water Fund. For more informa-
tion see, "Senate OK’s Water Settlement,” Associate Press State & Local Wire, May 28,
1999; and Sean Whaley, “Senate Addresses Rural Issues,” Las Vegas Review-Journal, May
29, 1999.

105 Editorial, “Fallon Farmers Should Negotiate While They Can,” Reno Gazette-Journal, 1995.

Chapter Six

THE PECOS RIVER CASE

Sharing a Resource Among Old Rivals

Case Researchers: Annette Pfeifer Hanada and Landon Hancock

A little water clears us of this deed. How easy it is then!

Lady MacBeth in Shakespeare ’s MacBeth

When we make rivers the battleground, rivers lose their es-
sence.

John Thorson, Special Master for the Arizona General Stream Adjudication

Note: This case report illustrates the use of a particular methodological
framework. It is not intended to replicate the legal and historical coverage of
this case provided in other sources. 1

Introduction: This interstate water conflict represents a classic dispute
over limited water supplies between two jurisdictions. The relevant areas of
eastern New Mexico and western Texas are shown in Figure 6. 1 .

Time period: The dispute dates to 1947 with the signing of the Pecos
River Compact. This report will evaluate the litigation period, 1983-1990,
with some coverage of the implementation period. This report was compiled
in 1998, and significantly revised and expanded in 2000.

158

Chapter Six

NE W M EXIC

MEXICO

NORIH

I 1

f ,

LAS VEGAS

/ »" :A *
l

ALBUQUERQUE

Canadian

River

ROSWELL •

CARLSBAD •

NEW MEXIC O I

EL m EL PASO T E x A s

foe,

Figure 6.1 Pecos River Case

The Pecos River Case

159

Basic nature of dispute: The amount of water flow in the Pecos River
from New Mexico into Texas according to the provisions of the Pecos River
Compact of 1947, and the method of measuring that amount.

Issues: The appropriate method to measure the amount of water to be de-
livered, payment (in water or money) for water not delivered between 1950-
1974, the economic/environmental feasibility for New Mexico to deliver the
required water amount, economic hardship, damages to West Texan agricul-
ture due to reduced water deliveries, and sustainability of agriculture in the
New Mexico portion of the Pecos River Basin.

Actors and Interests: Since this dispute was carried out mainly in the
U.S. Supreme Court, there were a limited number of ‘official’ parties.

• State of Texas, Interests: appropriation of water, compensation for de-
ficient water supply, new method for measuring water flow.

• State of New Mexico, Interests: appropriation of water, payment obli-
gations for inadequate water delivered to Texas.

• United States as third party to the compact commission, Interests: ap-
propriation of water, equitable resolution of conflict.

• Indirect actors included irrigators & communities on both sides of the
conflict. In New Mexico, the Carlsbad Irrigation District was inter-
ested in retaining water rights, while irrigators in Texas preferred to be
paid for shortfalls in water rather than in cash.

Attempted conflict resolution processes: Litigation (1974-88), out-of
court settlement negotiations (1988-89), a form of third party arbitration with
a Court-appointed Water Master, ratified by U.S. Supreme Court decisions,
(1988-90).

History of the Pecos River Conflict

1909-35: Several court decrees are issued to adjudicate the surface water

of various streams in the Pecos River drainage basin.

1948: Texas and New Mexico sign the Pecos River Compact and Con-

gress ratifies it. The compact apportions the water of the river
equally between the two states.

1974 Texas files a lawsuit, claiming that New Mexico violated the

Pecos River Compact by not delivering as much water as re-
quired under the terms of the compact.

1987-8 The U.S. Supreme Court rules against New Mexico, agreeing
with the Water Master that New Mexico must pay ‘back-
damages’ of water owed, but disagreeing about the form of

160

Chapter Six

payment. The decision stipulates that if an agreement on mone-
tary payments cannot be made in a timely fashion then repay-
ment in water will be ordered.

1990 The U.S. Supreme Court “stipulates” (formalizes a negotiated

agreement) that New Mexico shall pay Texas $14 million, in ex-
change for which Texas will release New Mexico from breaches
of the Pecos River Compact between 1952 and 1986.

Background

The Pecos River Compact, an agreement signed between the states of
Texas and New Mexico in 1947, governs the allocation of the waters of the
Pecos River Basin. The compact requires New Mexico “not to deplete by
man’s activities the flow of the river at the state line.” 2 This should give Texas
a quantity of water equivalent to the amount available in 1947 when the Com-
pact was signed and approved by Congress. An “inflow-outflow manual” is
used to determine the amount of water Texas should receive over any particu-
lar period. The Pecos River Commission, consisting of Texas, New Mexico
and the U.S. as a non-voting member, was established to resolve any water
allocation disputes by unanimous vote.

In later years it became apparent that the inflow-outflow manual did not
accurately reflect the status of the river since the water at the Texas State line
was below the predicted amount. After the Commission was unable to agree
on a method to determine annual variations in the water flow, Texas filed a
lawsuit in the United States Supreme Court. It claimed that New Mexico had
breached its obligations under the Compact, and sought a decree ordering
New Mexico to deliver water in accordance with the Compact.

A Special Water Master was appointed by the U. S. Supreme Court and
concluded that a new inflow-outflow manual was needed to provide an accu-
rate description of the 1947 conditions. He also recommended appointing a
third party to participate in the Commission deliberations when the two
Commissioners could not agree. The Special Water Master rejected both New
Mexico’s motion to dismiss the case, and Texas’ request for a simplified
measurement method to determine the shortfalls in state-line deliveries.

Based on the Compact, the U.S. Supreme Court did not agree to order a
third party to participate in the Commission deliberations. The Court decided
it could, however, resolve the dispute between the two states itself. A simpli-
fied method to determine the water shortfalls was rejected by the Court be-
cause it was not similar enough to the inflow-outflow method.

Summary of the litigation

Texas brought the case before the U.S. Supreme Court to gain redress for
perceived shortfalls in water delivery on the Pecos River. After appointing a

The Pecos River Case

161

Special Water Master, the Court affirmed that New Mexico had indeed failed
to deliver some 340,000-acre feet between 1952 and 1986. The Court further
ordered the appointment of a River Master to oversee water accounting and, if
necessary, order New Mexico to compensate Texas for annual shortfalls in
water delivery. A 1990 court ruling affirmed a negotiated agreement that al-
lowed New Mexico to make a monetary repayment of $14 million to Texas
for the water it failed to deliver between 1952 and 1986.

I. CRITERIA: OUTCOME REACHED

A. Unanimity or Consensus

It is difficult to determine the degree of unanimity within the forum of
court adjudication. Several times between the formal filing of the case in 1974
and the final ruling in 1990, one or both sides disputed the findings of the
Special Master. However, in each case, the Court decided the veracity of the
argument, and often decided against both parties. Although there is little
documentation available, the amount of redress paid by New Mexico to Texas
($14 million) was likely reached by unanimous agreement between the two
parties. This is surmised from the nature of the Court ruling, which was a
‘stipulated’ judgment of a joint motion by both parties that was recommended
by the Special Master. 3

B. Verifiable Terms

The resolution of the court case was published in the form of three U.S.
Supreme Court cases. 4 The terms of the continuing Pecos River Compact are
embodied in the compact itself, but modified by the in-flow/out-flow scheme
devised under the guidance of the Special Water Master and ratified by the
U.S. Supreme Court. 5

C. Public Acknowledgement

Other than the ruling of the Court, there appears to be little in the way of
publicized media events on the national stage. Additionally, local newspaper
coverage of the court decisions was limited to wire coverage and minor edito-
rial notices. United Press International had a brief news release in which
Texas Attorney General Jim Mattox indicated that “[t]he extra water that will
now come Texas’ way will be a godsend to West Texas and its peo-

162 Chapter Six

pie... providing] a substantial long-term boost to the agriculture economy
around Pecos...” 6

The most extensive coverage of the effects of the judgments came in water
editorials and stories regarding the environmental impacts and in subsequent
cases involving water rights on the Rio Grande. Other coverage, such as radio
and video archives, were unavailable and may have been more extensive;
however, this seems unlikely given the lack of national coverage by newspa-
per sources in New Mexico and Texas, along with the location of the decision
in Washington D.C.

D. Ratification

Any Pecos River decisions and agreements reached by the parties, or the
Special Master, required approval from the U.S. Supreme Court. Because the
case involved a compact between two states approved by Congress, the U.S.
Supreme Court retains ‘original jurisdiction.’ 7 In addition, the Court retains
jurisdiction to oversee the actions of the appointed River Master to determine
the amount of credit or shortfall in Pecos River water that New Mexico owes
Texas each year. In doing so, the Court renders quarterly judgements author-
izing payment for the River Master’s services. 8

Since this was a legal case settled by the U.S. Supreme Court in original
jurisdiction, there was no provision for either ratification or an appeal to other
bodies. However, in order for the State Engineer of New Mexico to purchase
water rights and ensure adequate water deliveries, the New Mexico House of
Representatives was required to pass a bond initiative to fund the effort. This
was accomplished by 1995, and has contributed to New Mexico’s ability to
purchase more than $10 million in water rights. 9

II. CRITERIA: PROCESS QUALITY
A. Procedurally Just

Although the 1988 Court Order, in finding that New Mexico had violated
the Pecos River Compact, clearly made Texas the winner, there was little in-
dication of ‘sour grapes’ on the part of New Mexico officials. As reported by
United Press International, Texas officials were pleased with the ruling and
felt that it was quite fair. Texas Attorney General Jim Mattox was quoted as
saying that, “[t]he extra water that will now come Texas’ way will be a god-
send to West Texas and its people.” 10

Mattox went on to indicate that he looked forward to the determination
from the Court on how much New Mexico would have to pay Texas for the

The Pecos River Case

163

water owed. The Special Master’s 1987 report indicated that he believed the
amount was 340.000 acre-feet; an amount agreed to by the Court and indem-
nified against New Mexico in the ruling. 11

Texas officials also felt that the $14 million settlement for past shortages
was an additional victory for them, despite their original estimates of the wa-
ter value at between $300 million and $1.1 billion. 12

Texas Attorney General Jim Mattox said it was the first time in United
States legal history that one state had been ordered to pay another for illegally
taking water. “It is gratifying to bring in $14 million for the state of Texas,’
said Mattox. “However, I am even more pleased that New Mexico will have
to live by its obligations to keep the water flowing to West Texas farmers and
ranchers in the future. Water is their lifeblood.” 13

Curiously enough. New Mexico officials also characterized the $14 mil-
lion agreement as a victory, compared to the possibility of repaying Texas in
water. “This is a total victory for New Mexico,” said New Mexico Attorney
General Hal Stratton. “This will preclude the necessity of condemning water
rights on the Pecos... and shutting down agriculture, at least in the Roswell

,,14

area.

Neither party expressed dissatisfaction with the U.S. Supreme Court’s pro-
cedural decision to appoint either the Special Master or the River Master. This
is likely the result of the inflexibility of U.S. Supreme Court - and other court
- processes and the additional caveat that U.S. Supreme Court decisions can-
not be appealed.

B. Procedurally Accessible and Inclusive

There is no information regarding the inclusiveness and accessibility of the
process used by the Special Master to determine river flows and compensa-
tion. Although there were several Special Masters, who served in succession,
no indication was given that any of them were dismissed or that either party to
the conflict was dissatisfied with their procedures, even if they disputed the
conclusions.

C. Reasonable Process Costs

There is very limited information in the news coverage concerning the
costs that were incurred. However, as the loser of the court case, New Mexico
has had to bear the burden of most, if not all, of the costs. In the 1990 U.S.
Supreme Court ruling, $200,000 of the $14 million settlement was set aside
for payment of Texas’ legal costs, with the caveat that this payment not estab-
lish New Mexico’s liability for such costs. 15 In addition to the $14 million
settlement, it is mentioned that New Mexico paid Hank Bonhoff, a private
attorney, $92,000 for his work on the settlement negotiations. 16

164

Chapter Six

III. CRITERIA: OUTCOME QUALITY

A. Cost-Effective Implementation

Despite the fact that New Mexico’s ‘one-time’ payment was made in cash,
the judgement requires that New Mexico meet its yearly obligations to Texas
in the form of Pecos River water. This has created a constant financial burden
on the state’s Interstate Stream Commission, as it has been forced to buy or
lease water rights in order to maintain adequate flow to Texas. This is due to
New Mexico’s legal system, which only allows the state to acquire the newest
water rights first in order to meet its obligations to Texas. Unfortunately,
those water rights are owned by individuals who have wells instead of access
to surface water. 17 If the River Master judges that New Mexico has not been
meeting its obligation, the acquisition of those rights would do little to correct
the situation within the three-month time period mandated by the Court. In-
stead, New Mexico has instigated a program to purchase and lease surface
water rights and ensure that enough water reaches Texas yearly. Between the
1991 ruling and February 2000, New Mexico spent $20 million to purchase
approximately 8,600 acre-feet a year. 18

As noted in an editorial in the Albuquerque Journal , the state of New
Mexico regularly pays farmers $50 per acre-foot for water which they bought
for $12 per acre-foot. 19 In addition. New Mexico’s acquisition of IMC’s (a
potash mining company) water rights cost $3 million. 20 It seems clear that
while New Mexico has avoided the estimated $200 million cost of shutting
down farms and cities to meet its water obligations, the continued cost of pur-
chasing and leasing rights may eventually approach that amount if those costs
continue at the levels incurred in the 1990s.

B. Perceived Economic Efficiency

The negotiated settlement of $14 million was perceived by most parties as
an economically efficient method for New Mexico to repay Texas. 21 Despite
this, some in Texas felt that the ‘efficiency’ of the one-time payment did little
to offset the loss of 340,100 acre -feet of water. For more details, see Criteria

IV. A.

Although covered in more detail above in III.A., it seems clear that the
combination of New Mexico water law with the judgment’s strict require-
ments for annual shortfall repayment has created a situation in which New
Mexico must pay significant sums to ensure adequate water flows to Texas. It
could be reasonably argued that these costs are far from efficient, especially if
they result in costs that exceed the estimated $200 million of shutting down
farms and limiting water to cities in the Pecos River Basin.

The Pecos River Case

165

C. F inancial F easibility/Sustainability

The reported damage to Texas agriculture as a result of not receiving its
share of Pecos River water is significant according to Texas’ estimates. How-
ever, the judgment along with the Court’s ruling that Texas should receive 45
percent of Pecos water have made New Mexico’s obligations to Texas possi-
bly quite onerous. Before the 1990 stipulated agreement, which granted a one-
time payment to Texas, it was observed that the possibility of paying Texas
the 340,100 acre-feet of water would curtail New Mexico’s industrial devel-
opment and possibly shut down some agricultural enterprises. For New Mex-
ico to fulfill its obligation and repay the damage was perceived as possibly
“wip[ing] out agriculture in southeastern New Mexico for 10 years.” 22

The stipulated agreement of 1990, however, allowed New Mexico to for-
sake repayment in water in exchange for a one-time $14 million payment to
Texas. This type of ‘money for water’ payment was seen by the U.S. Supreme
Court as an extraordinary, one-time solution to an exceedingly difficult reme-
dial problem. The Court further noted that future performance of the Compact
was to be made in kind, forestalling New Mexico’s ability to pay Texas
money in lieu of water. 23

The costs to the state of New Mexico to purchase and lease water rights
exceeded $50 million between 1991 and 1999, and additional expenditures are
expected. 24 However, an editorial in the Albuquerque Journal contends that
the $50 per acre-foot the state pays to farmers for their water rights is inflated,
considering that the farmers pay only $12 per acre-foot, and the taxpayers end
up paying the difference. 25

In addition to the costs of purchasing and leasing water rights, the U.S.
Supreme Court ruled that the states would have to share the cost of the con-
tinued presence of a River Master to oversee the agreement and determine the
amount of water owed to Texas each year, as well as the surplus or deficit
owed by New Mexico. 26 Overall, as of late 1999, the Special (or Water) Mas-
ter and the River Master have billed approximately $400, 000. 27

D. Cultural Sustainability/Community Self-Determination

The ruling will affect both states in different ways. Farmers in Texas will
be able to irrigate their crops, while in some areas of New Mexico the econ-
omy could suffer. Despite the fact that the settlement agreement precluded
condemning water rights on the Pecos and shutting down of agriculture, the
extensive leasing and purchasing of farmers’ water rights may have some of
the same effect, because the water leases and purchases cause reductions in
irrigated acreage.

There is little doubt that the water restrictions required by implementation
of the court ruling will curtail the rapid expansion of cities and agriculture in

166

Chapter Six

New Mexico’s portion of the Pecos River Basin. However, the fact that the
state of New Mexico must purchase water rights rather than appropriate them
means that, for the most part, the process of water rights transfer and reduced
irrigated acreage will be voluntary.

E. Environmental Sustainability

Due to the geographic nature of the Pecos River, a consistent flow cannot
be maintained. The deficiency in water flow can be attributed both to natural
causes and ‘man’s activities.’ The ‘human-derived’ activities that impede the
normal flow of the Pecos stem from the damming of the river to ensure ade-
quate year-round water for New Mexico farmers and for the state’s obligation
to Texas. Environmental concerns arise due to this irregular water flow.

‘The Pecos River suffers frequent and destructive floods that ruin the
channels and fill the reservoirs with silt” say court documents filed by the
state of New Mexico. In addition, the region and the river suffer from periodic
bouts of drought. Finally, one supposed problem with water supply stems
from the introduction of salt cedars into the region sometime during the be-
ginning of the 20 th century. Several newspaper stories and a National Geo-
graphic article contend that an acre of salt cedars are capable of drinking
down a million gallons of water a year. 28 However, examinations of water
flows in the region contend that water flow and consumption issues are too
complex to accurately calculate the effect of the trees. Indeed, according to
Fredrick Bruce, a major problem in the Compact was a miscalculation in the
amount of salvaged water that planners estimated would be recovered by salt
cedar eradication. 29

The implementation of the Court decision has compounded other envi-
ronmental problems, leading to the threat of at least one other court case. In
addition to environmental problems caused by salt cedars and efforts to eradi-
cate them, artificial controls of the River’s flow have affected the Pecos
bluntnose shiner, which has been placed on the endangered species list. 30 In
1998, a dispute arose between the federal government, the state of New Mex-
ico, and local farmers over federal plans to increase water flows to sustain the
bluntnose shiner. The fish requires between 31 and 35 cubic feet per second to
live. However, releasing the extra water required to keep the fish alive was
estimated to cost farmers up to 20 million gallons per day. That is water that
would be lost both to New Mexico fanners and to water deliveries owed to
Texas. 31

In 1998, a Santa Fe-based environmental group, Forest Guardians, fded a
lawsuit against the federal government, charging it with not obeying the En-
dangered Species Act by ensuring that enough water flows year-round to
guarantee plant and animal viability. 32 This suit, along with others filed by the
group against the Colorado River Compact, and the Rio Grande and Costilla

The Pecos River Case

167

Creek agreements, charged the defendants with partitioning river flows with
no regard to endangered species. In the Pecos River case, the result was a
court order that forced the Fish and Wildlife Service to locate the shiner’s
habitat in the river. In addition, despite local and state complaints that the fed-
eral government was taking over the river, the Bureau of Reclamation and
FWS stated their determination to ensure the shiner’s habitat remains whole. 33

These decisions have made it more difficult for New Mexico to provide
timely delivery of water to Texas. As a result, New Mexico has been forced to
spend more money to purchase water rights from irrigators.

F. Clarity of Outcome

Because of the irregular flow of the Pecos River, the original compact did
not specify a particular amount of water delivery to Texas. The measurement
to determine the amount has also been controversial. What seemed to be a
sensible approach to the changing river flow became the basis of controversy.
The current court-ruled agreement could not be said to have much more clar-
ity than the original. The major difference is that the annual amount of water
owed by New Mexico to Texas (and any surpluses or shortfalls) is determined
by the continued presence of the court-appointed River Master. A second ma-
jor difference was the acceptance by the court of a new flow measurement
designed to gauge more accurately the amount of water flowing through the
Pecos and, consequently, the amount of water owed to Texas each year. 34 Os-
tensibly, New Mexico owes Texas 45% of each year’s river flow. However,
that flow has to be determined each year by the River Master based on the
“inflow-outflow” model, which measures basin inflows and outflows at a
number of gauging stations. 35

G. Feasibility/Realism

The feasibility of the court ruling is difficult to determine. One of the ma-
jor reasons is the fact that there was no provision for appeal. Regardless of
whether or not they felt that the result was feasible, each side (and their con-
stituents) had little choice but to ‘pony up’ and implement the decision.

With regard to the negotiated settlement of the back claims of water (the
1990 stipulated agreement), however, there is some indication that both state
governments were pleased with the outcome and believed that it was both fea-
sible and realistic. Despite this, some parties on each side, namely farmers in
New Mexico and political candidates in Texas, felt that the settlement was
unfair and would result in unacceptable costs. This issue is covered more in
the next section.

168

Chapter Six

H. Public Acceptability

As is evident in the next section, the level of public acceptability varied
among the constituencies. Farmers and irrigators in New Mexico were hardly
pleased, as were municipalities on that side of the Pecos River basin. How-
ever, there are some indications that farmers on the Texas side were also less
than pleased with the stipulated agreement, preferring to receive water in-
stead. See section IV.A. for more details.

IV. CRITERIA: RELATIONSHIP OF PARTIES TO
OUTCOME

A. Satisfaction/Fairness

There was mixed satisfaction with the 1988 judgement, even within Texas,
due to perceptions that the damage payments were too small. As mentioned
above, Texas Attorney General Jim Mattox was quite satisfied with the
judgement and the following agreement, pledging to use most of the $14 mil-
lion payment to assist farmers in West Texas. Despite this, a number of indi-
viduals in west Texas were unhappy with the $14 million agreement. The
most vociferous of these was Republican gubernatorial candidate Clayton
Williams, who also owns an irrigated alfalfa farm in the Pecos River basin.
His assertion that Mattox “sold West Texas farmers down the river” with the
settlement was based on his perception that the farmers wanted water, not
money. 36 Additionally, Williams felt that “$14 million [was] just a drop in the
bucket compared to what West Texas farmers have lost in water and damages
since 1950.” 37 Another critic was Billy Moody, Texas’ Pecos River Compact
Commissioner, who criticized the settlement in a letter to then-Governor, Bill
Clements. In his letter, he stated that Mattox owed an explanation to the farm-
ers of West Texas for his decision to lower the settlement amount to less than
$50 million. 38

On one hand, New Mexico was pleased with the chance to pay damages
monetarily rather than in kind, but officials remained concerned about the
economy in the affected areas. In an editorial, the Albuquerque Journal’s Bill
Hume contended that as a result of the court rulings, New Mexico’s share of
Pecos River water was actually shrinking. This perception was based upon the
court’s requirement that any shortfalls in water deliveries to Texas be made
up within one year. Therefore, New Mexico was forced to either purchase
surface water rights from original users (such as the Carlsbad Irrigation Dis-
trict), or to force surface users to give up their rights by removing rights from

The Pecos River Case

169

late-comers (who mostly pump groundwater) and original users. Either way,
“New Mexico’s available water supply is actually shrinking.” 39 Additionally,
irrigators in Lea County 40 sued the Interstate Stream Commission in an inef-
fective bid to stop the Commission’s plan to purchase and retire water rights.
The Lea County farmers indicated that their major problem with the Commis-
sion’s plans stemmed from wasteful use of water by Texas irrigators, and the
fact that they “were never ... invited to the table” to discuss water issues. 41

B. Compliance with Outcome Over Time

In order to comply with the Court’s 1988 decision, the New Mexico Inter-
state Stream Commission has bought or leased water rights which cost the
state over $50 million between 1991 and 1999. To maintain available funding
for water purchases and leases, the New Mexico House of Representatives
approved a bill in 1995 to allow the ISS to sell bonds for the purpose of pur-
chasing water rights. 42

Despite the willingness of New Mexico authorities to comply with the
judgment, problems have arisen with its implementation and cost. In April of
1993, the state engineer requested an audit of the Pecos River Water Rights
Purchase Program for the period from 1990 through 1995. The program was
initially established to acquire rights to Pecos water that could increase the
amount of water in the river flow to Texas. As of 1995, the Commission had
spent about $15 million in acquiring or leasing water rights. The audit re-
vealed that New Mexico had paid $1.5 million more than it should have paid
for a block of water to the Pecos River. Lurther irregularities exposed that the
Commission overpaid for water rights from the Hondo Company and several
individuals. A consulting contract with Dr. John Hernandez for $52,400 was
paid without the formal approval of the Interstate Stream Commission. 43

The stipulated settlement of New Mexico’s owed water (the one-time $14
million payment) was required by March 1, 1990. 44 Although there is little
documentation that the payment was made, no indication or report of a lack of
payment was found. Therefore, given the willingness of New Mexico to make
the monetary payment in lieu of payment in water, it is nearly certain that
New Mexico complied, despite the limited time frame.

C. Flexibility

The 1988 Court ruling requires that any shortfall in water deliveries to
Texas be compensated within a single calendar year. Therefore, New Mexico
has made strenuous efforts to ensure that it maintains a surplus in its water
delivery account. The ruling’s inflexibility is one of the primary reasons be-
hind New Mexico’s purchase of extensive water rights and leases. This is due
to the combination of the one-year shortfall repayment with New Mexico’s

170

Chapter Six

riparian water rights laws. The latter means that New Mexico can only appro-
priate water rights on the basis of last granted. These rights tend to be based
on well water, rather than surface water, and the repatriation of these rights to
the state would have almost no impact on river flows, and would certainly not
return enough water to the river to erase any shortfalls. 45

D. Stability/Durability

The stability and durability of the court ruling is dependent upon a number
of factors, primarily the erratic weather conditions in New Mexico that often
result in years of floods followed by years of drought. Until 1994, New Mex-
ico had managed to keep a surplus in its account of water owed to Texas.
However, in 1995 and 1996, New Mexico under- delivered water to Texas,
because of drought in the region. 46

Despite variations in water deliveries, New Mexico has managed to main-
tain a surplus in its Pecos River water account with Texas. As of February
2000, it had a 21,000 acre-foot surplus. However, according to Norman
Gaume, director of the New Mexico Interstate Stream Commission, much of
that surplus “has been obtained by leases rather than purchases and permanent
retirements.’ 47

Environmental concerns have also made it difficult for New Mexico to
meet the requirements set by the 1988 ruling. As described above, threats of
lawsuits by environmental groups have forced the federal government to in-
crease off-season releases of Pecos River water to support endangered spe-
cies. These releases were opposed by New Mexico officials as well as by
farmers and irrigators, who felt that they would be on the losing end of water
distribution. Given that the court ruling was fairly rigid, the farmer’s conten-
tion that they would have to take last place behind Texas and the Pecos blunt-
nose shiner was only slightly ameliorated by the federal promise to return wa-
ter to the river in exchange for increased winter flows. 48

V. CRITERIA: RELATIONSHIP BETWEEN PARTIES
(RELATIONSHIP QUALITY)

A. Reduction in Conflict and Hostility

It is difficult to estimate the level of conflict and hostility between officials
of both state governments. There is little evidence of any hostility, either be-
fore or after the 1988 judgement or 1991 stipulated agreement. However, con-
tinued actions by New Mexico irrigators as well as editorials in the Albuquer-

The Pecos River Case

171

que Journal indicate that the 'losers’ in this conflict still feel some resentment
towards Texas and the Federal government.

B. Improved Relations

There is little indication that the relationship between Texas and New
Mexico officials has improved as a result of the litigation and court rulings
surrounding the Pecos River Compact. Numerous incidents of suits, or threat-
ened suits, continue to dog relations between Texas, New Mexico, and other
users of water in the region. These center primarily on the Rio Grande and its
other tributaries rather than the Pecos, but the continued litigation points to-
ward a lack of improvement in the official relationship.

As for the other parties to the conflict, the farmers and irrigators in the Pe-
cos River basin are unlikely to feel any improvement in relations with New
Mexico officials or with Texas as a whole. Their continued contention that
they “are being sold down the river” to environmental and Texas concerns is
evidenced by the Carlsbad Irrigation District’s unwillingness to release water
during winter (resulting in a federal takeover of a dam controlled by the dis-
trict 49 ) and by a lawsuit filed by a Lea County irrigator against New Mexico’s
plan to buy water rights on the Pecos . 50

C. Cognitive and Affective Shift

There is no indication of a cognitive shift on the part of either party as a
result of the settlement of this dispute. Continued litigation on other fronts, as
well as resentment in New Mexico attest to a lack of cognitive shift among
the various parties. Indeed, the willingness of environmental groups like For-
est Guardians to engage in litigation on behalf of their concerns indicates that
the only cognitive shift resulting from this case is the efficacy of using the
courts to force compliance.

D. Ability to Resolve Subsequent Disputes

Although the judgment modified the inflow-outflow manual to allow for
future shortfalls in the river level, it did not allow for methods of payment
other than water. As noted in section IV.C., the judgement itself was not
flexible, essentially leaving New Mexico with the burden of compliance and
encouraging Texas to engage in litigation in the pursuit of other water claims
against New Mexico and others . 51

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Chapter Six

E. Transformation

There is little evidence to suggest that any transformation processes have
occurred as a result of the litigation surrounding the Pecos River Compact. As
noted above, Texas continues to pursue litigation as the primary means of as-
suring its water supply. In addition, various parties associated with the accord
or concerned with water issues along the Pecos River continue to pursue liti-
gation as their primary avenue for change.

VI. CRITERIA: SOCIAL CAPITAL

A. Enhanced Citizen Capacity to Draw on Collective Poten-
tial Resources

Although one could point toward Forest Guardian’s use of the Endangered
Species Act as a tool to ensure the survival of the Pecos bluntnose shiner,
there is no reason to assume that this citizen capacity stemmed in any way
from the litigation surrounding the Pecos River Compact. Indeed, it is
unlikely that either the Compact litigation, or the cases that have sprung from
it, have enhanced the capacity of the average citizen in New Mexico or Texas
to ensure their rights or to participate in water allocation processes.

B. Increased Community Capacity for Environmental/Policy
Decision-Making

Like the prior category, there is little evidence to suggest that either of the
state’s representatives have made any efforts to increase the community’s
ability to participate in the environmental policy decision-making process
with regard to the allocation of Pecos River water or other similar disputes.
Complaints by New Mexico irrigators that they were shut out of the decision-
making process regarding the bluntnose shiner indicate that governmental
bodies continue to be perceived as unwilling to listen to the irrigators’ posi-
tion . 52

C. Social System Transformation

Unfortunately, one of the primary results of the Pecos River Compact liti-
gation has been to encourage more of the same type of interaction. Changes in
social values to emphasize the protection of endangered species and the envi-
ronment over the needs of irrigation stem from sources other than the Com-

The Pecos River Case

173

pact litigation itself. Litigation remains the primary method for obtaining an
improved status for the environment, within the New Mexico context. This
enhances our conclusion that the Pecos River Compact litigation has had lit-
tle, if any, impact in improving the region’s social systems, or in providing for
any increase in social capital overall.

NOTES

1 Douglas L. Grant, "Interstate Water Allocation Compacts: When the Virtue of Permanence

Becomes the Vice of Inflexibility,” 74 University of Colorado Law Review 105, (Winter
2003); Emlen G. Hall, High and Dry: the Texas-New Mexico Struggle for the Pecos River
(Albuquerque, NM: University of New Mexico Press, 2002).

2 The Pecos River Compact: Entered Into By the States of New Mexico and Texas, (Santa Fe:

Quality Press, 1948).

3 Texas v. New Mexico, 494 U.S. 1 1 1 (1990).

4 Texas v. New Mexico, 494 U.S. Ill (1990), modifying 485 U.S. 388 (1988), modifying 482

U.S. 124(1987).

5 The Pecos River Compact: Entered Into By the States of New Mexico and Texas, (Santa Fe:

Quality Press, 1948). Ratified by Texas v. New Mexico, 467 U.S. 1238 (1984).

6 “Regional News,” United Press International, March 29, BC Cycle 1988.

7 See 462 U.S. 544, (1983). References U.S. Const. Art. Ill § 2, cl.l and U.S.C. § 1251(a)(1),

granting the US Supreme Court original jurisdiction to resolve controversies between two
states.

8 See 502 U.S. 903, (1991) for the order appointing the River Master and authorizing his or her

review and payment for services.

9 Digest, “House OKs bond sale to buy water rights,” Albuquerque Journal, March 8, 1995.

10 “Regional News,” United Press International, March 29, BC Cycle 1988.

“485 U.S. 388(1988).

12 “Regional News,” United Press International, July 14, BC Cycle 1989.

13 Helen Gaussoin, “Regional News,” United Press International, August 9, BC Cycle 1989.

14 Ibid.

15 494 U.S. Ill (1990).

16 See UPI “Regional News,” July 1989 and Gaussoin, August 1989.

17 Editorial, “Taxpayers Bail Out Pecos Water Users,” Albuquerque Journal, A20, December

11, 1998.

18 “State and Regional,” United Press International, February 25, AM Cycle 2000.

19 Editorial, December 1 1 , 1998.

20 “State Buys Back Water Rights From Potash Company,” Associated Press State & Local

Wire, February 25, AM Cycle 2000.

21 See section III.C. for details.

22 "Regional News,” United Press International, February 26, BC Cycle 1990.

23 Special Master Charles I. Meyers Report, November 30,1987; 107 5. Ct. at 2285-86.

24 Corrections, “For The Record,” Albuquerque Journal, March 10, 1999.

25 Editorial, "Taxpayers Bail Out Pecos Water Users,” Albuquerque Journal, A20, December 9,

1998.

26 502 U.S. 903(1991).

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Chapter Six

27 Specific amounts are $193,564.67 for the Special Master and 163,407.45 for the River Mas-
ter, between 2/24/86 and 10/12/99. Amounts vary year-to-year and are billed irregularly two
to three times a year.

“ 8 Cathy Newman, “The Pecos: River of Hard-Won Dreams,” National Geographic, September
1993, 49.

29 Fredrick R Bruce, “Salvaged Water: The Failed Critical Assumption Underlying the Pecos

River Compact,” Natural Resources Journal 33, no. 1 (Winter, 1993): 217-228.

30 Newman, p. 51.

31 Ian Hoffman, “State: Feds Taking Over River Albuquerque Journal, 1, October 31, 1998.

While the article is not clear, it is likely that the water is lost to both Texas and New Mexico
because it flows during the off-season for agricultural needs.

32 “Suit Threatened Over Water Management in Pecos River,” Frontline (Forest Guardians
Newsletter), # 38, November 12, 1998; and Tom Wolf, “The Law of the River May Finally
Meet Its Match," Los Vegas Review-Journal, 15B, July 24, 1998.

See Ian Hoffman, "State: Feds Taking Over River," Albuquerque Journal, 1, October 31,
1998; and Ben Neary, “Water Release Allowed to Save Threatened Fish," Santa Fe New
Mexican, April 24, 1999.

34 See 485 U.S. 388 (1988); and Neil S. Grigg, “Pecos River Compact: Recent Developments,”

[Internet], Texas Water Resources Institute Newsletter, 1987 [cited March 5, 2000]. Avail-
able from http://twri.tamu.edu/twripubs/NewWaves/v2nl/abstract-4.html.

35 Neil S. Grigg, “Pecos River Compact: Recent Developments,” [Internet], Texas Water Re-
sources Institute Newsletter, 1987.

36 “Regional News,” United Press International, August 21, BC Cycle 1989.

37 Ibid.

38 Ibid, and see “Regional News,” United Press International, July 14, BC Cycle 1989.

39 Bill Hume, “N.M. Share of Pecos River Shrinking,” Albuquerque Journal, B2, February 23,

1997.

40 Lea County centers around Lovington, NM. approximately 80 miles N.W. of Carlsbad, NM.
“Judge Throws Out Lea County Water Lawsuit,” Associated Press State & Local Wire,
November 9, PM Cycle 1998.

42 Digest, "House OKs BondS ale to Buy Water Rights,” Albuquerque Journal, March 8, 1995.

' Karen Peterson,. “Audit Shows State Spent Too Much on Water Rights,” Santa Fe New
Mexican, B4, April 13 1996,.

44 494 U.S. 1 1 1 (1990). Judgement entered on February 26 th , giving New Mexico four days to
comply.

Bill Hume, “N.M. Share of Pecos River Shrinking,” Albuquerque Journal, B2, February 23,
1997.

47 “State Buys Back Water Rights From Potash Company,” Associated Press State & Local

Wire, February 25, AM Cycle 2000.

48 “Pecos River Irrigation Water Released to Support Threatened Minnow,” Associated Press
State & Local Wire, November 19, BC Cycle 1998.

49 “Pecos River Irrigation Water Released to Support Threatened Minnow,” Associated Press
State & Local Wire, November 19, BC Cycle 1998. For continued action on this issue see
AP, "Farmers Take On State in Pecos River Water Dispute,” Albuquerque Tribune, A5, De-
cember 10, 1998.

50 “Judge Throws Out Lea County Water Lawsuit,” Associated Press State & Local Wire,
November 9, PM Cycle 1998.

51 See 510 U.S. 126 (1993) modifying 501 U.S. 221 (1991) Texas & Oklahoma v. New Mexico

on the Canadian River Compact and Texas' ongoing battle with Mexico over the latter’s

The Pecos River Case

175

shortages of Rio Grande water (See John Burnett, US-Mexico Water [Real Audio], National
Public Radio, Segment from All Things Considered, June 8, 2000 [cited June 10 2000].
Available from http:/search.npr.org/cf/cmn/cmnps05fm.cfm?SegID=75196.

52 “Judge Throws Out Lea County Water Lawsuit,” Associated Press State & Local Wire,
November 9, PM Cycle 1998.

Chapter Seven

THE SNOWMASS CREEK CASE

High Country Tradeoffs

Case Researcher: Kristine Crandall

The West is defined. ..by inadequate rainfall. ..We can’t create
water, or increase the supply. We can only hold back and re-
distribute what there is.

Wallace Stegner, 1987

Note: This case report illustrates the use of a particular methodological
framework. It is not intended to replicate the legal and historical coverage of
this case provided in other sources.

Introduction: This case study presents a compelling example of how a lo-
cal instream flow debate, spurred by increased snowmaking demands, led to
state-level policy challenges and changes. Snowmass Creek supplies water to
the Brush Creek Valley, which includes the Snowmass Ski Area and Town of
Snowmass Village, about seven miles southwest of Aspen, Colorado. The
relevant areas of the central Colorado mountains are shown in Figure 7.1.

Time period: 1992-1996 (with updates through revisions in 2000)

Basic nature of dispute: Water rights, instream flow protection.

178

Chapter Seven

Figure 7.1 Snowmass Creek Case

The Snowmass Creek Case

179

Issues: The Aspen Skiing Company and Colorado Division of Wildlife at-
tempted to change the standard for minimum instream flow from the level
adjudicated in 1976 by the Colorado Water Conservation Board.

Actors and interests:

• Aspen Skiing Company (SkiCo), Interests: owns and operates the
four ski areas at Aspen/Snowmass.

• Snowmass/Capitol Creek Caucus (SCCC), Interests: a group of
residents of the Snowmass/Capitol Creek valley advocating for protec-
tion of the valleys’ environment and rural character.

• Colorado Division of Wildlife (CDOW), Interests: the state agency
that manages wildlife resources.

• Aspen Wilderness Workshop (AWW), Interests: a long-established
local group that supports conservation of the natural environment
within the general Aspen area.

• Colorado Water Conservation Board (CWCB), Interests: the state
board that aids in the protection and development of waters for the
State, a function that includes appropriation, acquisition and protection
of instream flow and natural lake level water rights.

• Snowmass Water and Sanitation District (SWSD), Interests: a
quasi-municipal organization that supplies water and manages waste-
water within its district.

• Town of Snowmass Village, Interests: not directly involved as a party,
but generally supportive of increased revenues from ski tourists.

Attempted conflict resolution processes: The Colorado Water Conserva-
tion Board (CWCB) is the state board that decrees, holds, and protects in-
stream flow water rights in Colorado. In 1992, the Aspen Skiing Company
(SkiCo) and Colorado Division of Wildlife (CDOW) proposed a modification
in an existing instream flow water right. They wanted to lower the minimum
instream flow standard for the middle section of Snowmass Creek during win-
ter months. The CWCB held four public hearings to address this proposed
change. The Aspen Wilderness Workshop (AWW) and Snowmass/Capitol
Creek Caucus (SCCC) participated in some of these hearings and registered
their opposition to the proposed instream flow modification. The CWCB, act-
ing as a mediator, evaluated the information and recommended a lower in-
stream flow requirement. This case marked the first time the CWCB modified
one of its existing instream flow rights.

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Chapter Seven

The AWW began the litigation phase of the conflict resolution process
with an appeal of the CWCB’s decision. Eventually, the case ended up in the
Colorado Supreme Court, which overturned the decision.

This was followed by the passage of Senate Bill 64, which revised the
process by which the CWCB can alter minimum instream flow rights. This
bill is referred to as the “legislative agreement” in the case study. Pursuant to
the new codified procedures of the legislative agreement, a follow-up agree-
ment was negotiated by the parties. This follow-up agreement, which includes
the specific instream flow levels that are to be maintained in Snowmass
Creek, is referred to as the “negotiated agreement.”

Specific Outcome analyzed: The 1996 Legislative Agreement and the
subsequent Negotiated Agreement.

History of the Snowmass Creek Conflict

1976: The CWCB appropriates an instream flow right of 12 cubic

feet per second (cfs) for Snowmass Creek (officially decreed
in 1980).

1978: The SWSD signs agreements with Pitkin County and the

SCCC, incorporating the protection of Snowmass Creek
minimum streamflows into its operations.

1991: In August, the SkiCo submits a proposal to the USFS for a

master development plan and special use permit for Burnt
Mountain expansion of Snowmass area.

1991-92: The Aspen Skiing Co. seeks to establish Snowmass Creek as

a source of future snowmaking diversions. It commissions the
Chadwick aquatic study.

1992: On September 14, the CWCB recommends modified instream

flows, including a reduction to 7cfs winter flow for the 'mid-
dle’ reach of Snowmass Creek. The next day, the AWW files
a lawsuit to oppose the new recommendations.

1993: In July, a Colorado District Court upholds the CWCB’s deci-

sion. The AWW appeals to the State Supreme Court.

1994: March/November: The USFS issues a Record of Decision on

the Burnt Mountain expansion, giving the official “go ahead.”
1995: In June, the State Supreme Court overturns the CWCB deci-

sion and argues that final rulings on instream flow should be
made in water court.

1996: In May, the Colorado legislature passes Senate Bill 64. It re-

quires adequate grounds for modifying instream flow rights, a
60-day public notice of requests for modification, and fair
and formal procedures for modification hearings.

The Snowmass Creek Case

181

In July, new instream flows are set by the CWCB after nego-
tiations between the CWCB, the SkiCo, and the SCCC/AWW.
In September, the SCCC activates a January 1995 lawsuit
(held in abeyance) against the SWSD that claims the latter
violated the ’78 agreement by expanding its use of creek wa-
ter beyond the service plan (e.g. for snowmaking) without
addressing the possible use of alternative water sources.

1999: In February, the lawsuit filed against the SWSD is dismissed.

2000: In July, a coalition of environmental groups, including the

SCCC and the AWW, petition the Army Corps of Engineers
to review the conditions of the 404 permit issued in 1978 for
the Snowmass Creek Pipeline diversion.

Background

Snowmass Creek is a natural tributary of the Roaring Fork River, located
in Pitkin County in west-central Colorado. As shown in Figure 7.1, it origi-
nates in the Maroon Bells/Snowmass Wilderness and joins the Roaring Fork
River 17 miles downstream, at the town of Old Snowmass. The Snowmass
Creek valley is mainly rural residential with a few ranching operations. Part of
the Snowmass Ski Area, operated by the Aspen Skiing Company (SkiCo),
extends into the basin from the Brush Creek valley to the east. There are a
number of iriigation diversions on the creek that are used in the summer for
agricultural puiposes, but the main structure that diverts water year-round is
the diversion dam and pipeline operated by the Snowmass Water and Sanita-
tion District (SWSD). The SWSD is a quasi-municipal corporation that pro-
vides water and sewage treatment services to properties within its service area
of Snowmass Village, located in the Brush Creek valley.

Snowmass Creek contains populations of brook, brown, and rainbow trout.
It does not see much angling activity since it is surrounded by private land.
The Roaring Fork River has been recognized for the excellent quality of its
fishery. It has been classified a “Gold Medal” water by the Colorado Division
of Wildlife (CDOW).

For over 20 years, there have been efforts to preserve the natural flows and
ecosystem of Snowmass Creek. This case study focuses specifically on the
modification of the instream flow right on Snowmass Creek - a process that
started in 1992 and was resolved in 1996. An important agreement (the ’78
Agreement) remains at the heart of much of the controversy over the creek’s
stream flows.

In 1978, Pitkin County and the Snowmass/Capitol Creek Caucus (SCCC),
a group of residents of the Snowmass/Capitol Creek Valley, each developed
agreements outlining specific measures that the SWSD would take to protect
the instream flow levels of Snowmass Creek (the two agreements are referred

182

Chapter Seven

to collectively as the ’78 Agreement). The County’s goal was to ensure com-
pliance with its land-use code, which does not allow development to nega-
tively impact streams, while the SCCC sought to protect the creek’s natural
ecology.

At the time of the ’78 Agreement, the SWSD’s main water supply came
from East Snowmass Creek (via a pipeline to Brush Creek), but it also held
senior water rights lower in the basin on Snowmass Creek. The SWSD was
proposing to construct a diversion structure and pipeline to carry supplemen-
tal municipal/domestic water for its customers in Snowmass Village (the
Snowmass Creek Pipeline). The diversion required approval from the Army
Coips of Engineers (Corps) in the form of a 404 permit, because of the dredge
and fill activities associated with construction of a diversion dam. The Corps
was also concerned about the potential adverse environmental effects of the
displacement of water from the Snowmass Creek basin. The ’78 Agreement
recognized the 12 cubic-feet per second (cfs) minimum streamflow adjudi-
cated by the Colorado Water Conservation Board (CWCB) in 1976. It in-
cluded agreed-upon methods to protect the natural fishery and ecology of
Snowmass Creek, which restricted the SWSD’s water rights. The ’78 Agree-
ment contained several stipulations directing the SWSD to first maximize wa-
ter sources other than Snowmass Creek. For example, before drawing the
creek down below the minimum flow level, the SWSD agreed that it would
use all available water supplies from its other facilities and sources. Accord-
ing to the agreement, the implementation of water conservation practices was
another environmentally acceptable means of enhancing existing water. It
stated that the SWSD would continue to implement a water conservation pro-
gram and consider other conservation methods within its discretion.

A third clause addressed the location of additional water sources, whereby
the SWSD would agree to undertake a study to assess alternative plans that it
could implement to avoid reducing the flow of Snowmass Creek through its
diversion through the Snowmass Creek Pipeline. The SWSD, according to the
agreement, would pursue alternatives, to the extent reasonably practicable, in
order to prevent Snowmass Creek from falling to a level (less than the mini-
mum instream flow) below which the survival of the existing fishery is threat-
ened. The ’78 Agreement was not a focal point of the dispute covered in this
case study, but it has been the source of a longer controversy which is further
described in Part V. Perhaps most importantly, the ’78 Agreement provides
the general conditions under which the Coips granted the 404 permit to allow
the SWSD’s construction of the Snowmass Creek diversion and pipeline.

The establishment of instream flow rights is a relatively new way of think-
ing about water use. Water allocation in the West rests on the “Prior Appro-
priation Doctrine.” This provides water rights for “beneficial use,” that is,
consumptive use that takes water out of streams and rivers. In more recent
times - as agriculture, cities, industry, hydropower production, and flood con-

The Snowmass Creek Case

183

trol operations have dammed, tapped into and re-routed the flowing oases of
the west - natural ecosystems supported by flowing streams have suffered. To
address this problem, many western states, including Colorado, have devel-
oped water policies that include the preservation of instream flows. Montana
has taken a very strict policy line on this issue by not allowing any new deple-
tion of winter stream flows.

The Aspen/Snowmass area experiences typical climatic cycles that include
dry or late winters. Such winters, without the benefit of snowmaking, result in
later opening days and poor skiing conditions during Christmas, the busiest
time of the year. This leads to reduced income for ski resorts and nearby busi-
nesses that rely on skiers. In an effort to remain competitive with other ski
resorts, many of which already had snowmaking capabilities, the SkiCo for-
mulated a specific plan in 1991 for snowmaking at the Snowmass Ski Area. It
looked at Snowmass Creek as an ideal water source, and the SWSD agreed to
convey extra water to the SkiCo through its Snowmass Creek diversion.

The caveat to the SkiCo’ s strong interest in obtaining water for snowmak-
ing was that it was planning expansion of the Snowmass Ski Area onto Burnt
Mountain. In August of 1991, the SkiCo submitted to the United States Forest
Service (USFS) its formal proposal for the expansion. The proposal covered
snowmaking activities, which would be supported by the SWSD’s provision
of raw water from Snowmass Creek.

In response to the SkiCo’ s interest in using Snowmass Creek water for
snowmaking, the Colorado Division of Wildlife (CDOW) was prompted to re-
evaluate the creek’s streamflows and aquatic habitat. The CDOW is the
agency that evaluates stream habitat and fishery requirements for CWCB in-
stream flow adjudications. It had established the 12cfs instream flow level in
1976. The SkiCo hired an aquatic consultant to coordinate with the CDOW’s
efforts. Together, the CDOW and SkiCo consultant determined that winter
flows of 7cfs would be sufficient to protect the fishery in the middle reach of
the creek. In justifying this change, the CDOW claimed that the 1976 in-
stream flow level was based on a calculation error.

The SkiCo believed this would allow it to withdraw the difference (5cfs)
for snowmaking. In early 1992, based on the CDOW’s conclusion and the
SkiCo’ s request, the CWCB began a proceeding to modify the Snowmass
Creek minimum streamflows, including a proposal to lower the winter flows
in the middle reach from 12cfs to 7cfs.

The Colorado Water Conservation Board (CWCB) is the state agency au-
thorized by statute to adjudicate minimum streamflows in order to “preserve
the natural environment to a reasonable degree.” The CWCB’s establishment
of the 12cfs minimum streamflow for Snowmass Creek in 1976 was intended
to fulfill this objective. The relationship between the CWCB minimum
streamflow and the ’78 Agreement is complicated. Although the CWCB’s
Snowmass Creek minimum streamflow right is junior to any pre-1976 rights

184

Chapter Seven

(e.g. the SWSD’s senior rights), the ’78 Agreement requires the SWSD to
take the referenced measures to preserve the CWCB’s minimum instream
flows.

After learning of the CWCB’s proposed instream flow modifications from
a newspaper article a week before the first hearing on the matter, the SCCC
and Aspen Wilderness Workshop (AWW), an environmental group based in
the Roaring Fork Valley, became involved. The SkiCo, the CDOW, and the
CWCB had not initiated any public forum for discussion of the proposal.
Through the hearing process, the SCCC and AWW asked how the CWCB
could choose not to uphold an established instream flow right. They sought
more in-depth environmental studies of the potential impacts of lower stream-
flows in the winter.

After three more hearings on the issue, a process that lasted over a six-
month period, the CWCB formally recommended a lower winter minimum
instream flow for the middle reach of Snowmass Creek. During the hearings,
the SCCC and AWW had requested that the CWCB postpone any decision
until an adequate evaluation of the stream’s ecology and the potential impacts
of reduced winter flows could be studied (which would take a winter season).
The AWW appealed the ruling, with help from several environmental attor-
neys who donated their time at the request of the Land and Water Fund of the
Rockies. The AWW took the lead in the litigation, working together with the
SCCC. After the Colorado District Court upheld the CWCB’s decision, these
two groups took the matter one step further by appealing to the state’s Su-
preme Court. In the meantime, the Burnt Mountain expansion received the
USFS’s approval in 1994. The expansion included proposed snowmaking op-
erations, but without a resolution to the issue of water availability.

The Colorado Supreme Court ruled in favor of the AWW in 1995. This
ruling reversed the CWCB’s instream flow modification on Snowmass Creek.
It stated that the CWCB cannot unilaterally reduce instream flow rights and
that such issues should instead go to water court for determination. The SkiCo
then responded by lobbying the Colorado State Legislature to pass legislation
that would overturn the Supreme Court’s decision, giving sole authority to
make instream flow modifications back to the CWCB. In the meantime, dur-
ing the winter of 1994/95, the SCCC hired an aquatic consultant to study the
winter ecology of Snowmass Creek. Specifically, they wanted to study the
potential impacts of lower winter streamflows on the survival of incubating
trout eggs.

In 1996, legislative action reinforced the Supreme Court’s ruling. Senate
Bill 64 (SB 64) was signed into law by Governor Roy Romer in May 1996. It
required the CWCB to develop “grounds for modification” of an existing flow
right, to properly notify the public at least 60 days in advance of a “request for
modification,” and to establish fair and formal procedures for the healings
held to address such requests for modification. As part of the fair and formal

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185

procedures, all evidence supporting a modification must be open to cross-
examination and disclosure, and if appropriate concerns are raised about a
reduced flow’s impacts on the environment, one year must be allowed to
study the possible impacts further 1 . Under the new law, the CWCB still pre-
sided over proposed changes to existing instream flow rights, but final rulings
were to be made in local water court. The new rules were tested immediately,
when the Snowmass Creek case was reheard in September, 1996 before the
CWCB. In light of the stream ecology findings of SCCC’s aquatic consultant,
which raised concerns about the ability of the creek’s trout population to suc-
cessfully spawn and overwinter with lower winter flows, a follow-up negoti-
ated agreement was struck between the CWCB, CDOW, SkiCo and SCCC 2 .
The SWSD was absent in these negotiations. It is assumed that the SkiCo, one
of its largest customers, represented its interests and that it chose not to be-
come directly involved because the SkiCo took the lead.

The negotiated agreement established seasonally variable streamflows that
reflect the survival needs of the fishery in different stream reaches. Table 7.1
summarizes the instream flow modifications negotiated for the creek’s middle
reach. For example, in a fairly normal hydrologic (moisture) year, which in

Percentile Water Year

Recurrence Interval

Instream Flow
Recommendations

50 lh % or Greater

1:2

12 cfs (10/16- 11/30)
10 cfs (12/1 -3/31)

25 ,h % to 50 ,h %

1:4 to 1:2

12 cfs (10/16- 10/31)
10 cfs (11/1 - 12/14)

9 cfs (12/15 -12/31)

10 cfs (1/1 -3/31)

10 ,h % to 25 th %

1 : 1 0 to 1:4

12 cfs (10/16 -10/31)
10 cfs (11/1 - 11/14)

9 cfs (11/15- 12/21)
8.5 vfs (12/22- 12/28)

8 cfs (12/29 -12/31)

9 cfs (1/1 -3/31)

Less than 10 ,h %

1:10

9 cfs (10/16- 10/21)
8 cfs (10/22- 10/31)

7 cfs (1 1/1 - 12/31)

8 cfs (1/1 -3/31)

Table 7.1 Final Snowmass Creek Instream Flow Modifications:
Middle Reach (Source: CWCB, 1 996 ? )

this case occurs one out of every two years, the minimum flow recommenda-
tion for the middle reach of the creek is 12cfs between October 16 and No-

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vember 30, and lOcfs between December 1 and March 31. Along this same
middle reach, the lowest flow level in the new decision is a 7cfs flow between
November 1 and December 31 in a “less than one in ten” moisture year (the
driest scenario). In three out of four years, the new flow rights maintain at
least a 9cfs minimum flow. As of 1998, the Snowmass Ski Area had snow-
making equipment serving 130 of its 2,580 acres. The availability of water for
snowmaking on these acres depends on the moisture year, as determined by
the negotiated agreement. The Burnt Mountain expansion is in progress.

The 1996 negotiated agreement that resulted from the process established
in SB 64 ended the battle over the junior instream flow rights, but the SWSD
is presently (as of 2000) attempting to claim that the ’78 Agreement does not
restrict its senior water rights on Snowmass Creek. As already noted, the
SWSD did not participate in the conflict resolution process over instream flow
modifications, and continued to claim its senior water rights in Snowmass
Creek. It is not directly known how the SWSD reacted to the negotiated
agreement, but since it believes that its senior rights have priority over any
junior instream flow rights, it most likely viewed the negotiated agreement as
outside the scope of its water diversion activities. The SCCC sued the SWSD
in 1996 over non-compliance with the ’78 Agreement. In February 1999, the
Pitkin County District Court ruled that the SWSD had not violated any condi-
tions of the ’78 Agreement (Case No. 95CV16). In July 2000, the Public
Counsel of the Rockies filed a petition with the Corps, claiming that the con-
ditions of the 404 permit granted to the SWSD in 1978 for its Snowmass
Creek diversion and pipeline were not being satisfied.

I. CRITERIA: OUTCOME REACHED

A. Unanimity or Consensus

The legislative agreement was not unanimous. The SkiCo lobbied the State
legislature to introduce a bill overriding the Supreme Court’s decision. Ac-
cording to the local press, the Snowmass Village town council gave prelimi-
nary approval to contribute $30,000 to this lobbying effort. 4 While this oc-
curred before the legislative agreement was established, it indicates that the
SkiCo did not support the reversal of the CWCB's decision, which was upheld
in the form of the legislative agreement. In addition, some parties were not
present at the table. A party that was missing throughout the conflict resolu-
tion process was the Snowmass Water and Sanitation District (SWSD), since
the SkiCo represented its interests. One press article states that the SWSD and
SkiCo spent $400,000 on attorneys and other fees during the time of this case
study, and through to the dismissal of the SCCC’s eventual lawsuit against the

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187

SWSD. The SkiCo is reported to have covered half of this cost. 5 During the
time period of the conflict resolution process described in this case study, the
SWSD went on record emphasizing its senior water rights on Snowmass
Creek - rights which it felt were not restricted by the ’78 Agreement. There-
fore, one reason the SWSD did not involve itself directly in this hearing proc-
ess was its own feeling that its senior rights superseded any junior instream
flow rights, though the latter were intended to protect the natural environment.
This is discussed in more detail in Part IV.

B. Verifiable Terms

The legislative agreement was passed by the State legislature and formally
signed. The negotiated agreement was formally signed by the participating
parties and ratified by the water court.

C. Public Acknowledgement of Outcome

There was public acknowledgement of both the legislative and negotiated
agreements. Press articles and publicly accessible legal briefings covered the
legislative agreement. 6 The negotiated agreement received less exposure in
the press, but was documented through the CWCB’s News and Information
website.

D. Ratification

The legislative agreement was ratified by the State legislature on May 23,
1996 and signed into law by Governor Romer. The negotiated agreement was
signed by the parties, and was filed with the District 5 Water Court in July
1996 (Case # W-2943). No court was required to approve the legislative
agreement. However, one of the important requirements of Senate Bill 64 is
that any proposed instream flow right modification made by the CWCB must
be filed in writing with the water court. It also allows any member of the pub-
lic who attends the CWCB hearing to petition for judicial review of the
CWCB’s decision regarding instream flow right modifications with the water
court. Before passage of SB 64, the CWCB was the sole reviewer of proposed
modifications of water rights. Thus, the agreement introduces a more formal
and active role for the judicial branch to review modifications.

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II. CRITERIA: PROCESS QUALITY

A. Procedurally Just

The AWA’s appeal of the CWCB decision was based on its view that the
CWCB hearing process did not allow publicly requested environmental stud-
ies to be done. As part of the public hearing process before the CWCB, the
SCCC asked for sufficient time to do winter studies on Snowmass Creek to
determine the impact the lower minimum instream flow standard would have
on the fishery. 7 Additional time was not granted by the CWCB, which made
its recommendation on September 14, 1992 - about six months after the first
hearing. In 1995, when the Colorado Supreme Court voted to overturn the
CWCB’s decision. Sue Helm of the SCCC was quoted as saying: “It’s about
process, but the big thing to us is all the information will be presented.’’ 8

B. Procedurally Accessible and Inclusive

1. Public Participation

There were four public hearings held before the CWCB in 1992 to address
proposed modifications to the 1980 Snowmass Creek instream flow decree.
All the main actors, including the SCCC, AWW, CDOW, SkiCo, and CWCB,
participated in the hearing process.

2. Public Access to Information on Issues

The SCCC and AWW did not attend the first public hearing because they
did not know about it in time. Public notification of the proposed instream
flow modification on Snowmass Creek appeared in the newspaper a week
before the first healing. It is not known whether, and when, such notification
appeared in other public forums.

3. Access to Technical and Substantive Information on Issues

It is telling that parties on each side of the debate engaged in separate sci-
entific studies. The SkiCo and SCCC hired separate aquatic consultants to
determine limiting habitat conditions for the Snowmass Creek fishery. The
CDOW collaborated with the SkiCo, while the SCCC’s research was per-
formed independently. Results were shared among the parties, however they
provided no basis for agreement until the final compromise was reached in the
form of the negotiated agreement’s streamflow conditions.

The Snowmciss Creek Case

189

4. Public Education

Less education-oriented and more activist in nature, the SCCC produced
two brochures explaining its perspective on the ’78 Agreement. Both bro-
chures were publicly disseminated and contained language from the agree-
ment with a presentation of the disputed winter streamflows and the SCCC’s
view of impacts on fish survivability. The stakeholders did not hold any
known public forums or education campaigns.

C. Reasonable Process Costs

1. Costs to Stakeholders in the Process

A study was done by the United Neighborhoods Fund (UNF) in 1996 to
examine the cost of the Snowmass Creek conflict to the community and to
seek possible solutions. It was estimated, according to information in the local
media, that on the side of the SCCC and AWW, pro bono attorney fees
amounted to $350,000, paid attorney and consultant fees were $420,000, and
volunteer time was valued at $360,000 (13,000 hours) 9 .

The SkiCo conducted its own aquatic study and had legal counsel
throughout the conflict resolution process. As noted earlier, it has been re-
ported that the SkiCo expended $200,000 and the SWSD another $200,000 on
legal and other fees throughout the conflict.

2. Costs to Taxpayers

The UNF study estimated that Pitkin County spent $85,000 in attorney
fees. Information is not available on court costs for the conflict resolution
process. These were incurred at the state (District and Supreme Courts) level,
and also include the time and resources spent by the Colorado Attorney Gen-
eral in representing the CWCB. The Town of Snowmass Village earmarked
$30,000 taxpayer dollars to lobby against the legislative agreement.

III. CRITERIA CATEGORY: OUTCOME QUALITY
A. Cost-Effective Implementation

This section describes the costs of implementing the agreement beginning
with the first CWCB hearing in 1992 and ending with the negotiated agree-
ment made in September 1996 under the provisions of the legislative agree-

190

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ment. The potential future costs are described in Part III.C., the Community
Seif-Determination/Sovereignty section.

1. Costs to parties at table

It is assumed that the CWCB bears the extra costs that might arise in alter-
ing its public process for changes to the proposed instream flow water rights.
The Colorado Water Court will also experience additional costs, borne by
Colorado taxpayers and through fees paid by parties appearing in water court
proceedings.

There is evidence that parties actually have the ability to pay their share of
the costs. These costs arise from activities already performed by the parties.
The SkiCo (and the SWSD) will experience opportunity costs into the future
because of the inability to use as much water for snowmaking as it might have
used without the legislative and negotiated agreements.

Economic effects :

The SkiCo may have had other water sources to explore for its snowmak-
ing, but this was not evident at the time of the conflict. The legislative agree-
ment halted the SkiCo’ s attempt to secure water for its snowmaking operation
from Snowmass Creek, thus preventing expansion of the economic activity
cited above. However, the negotiated agreement achieved a compromise that
made water available for snowmaking. The SkiCo originally was attempting
to gain rights to more water than is available.

2. Costs to public

The most identifiable economic effect of the legislative and negotiated
agreements relates to the certainty of ski business provided by snowmaking.
According to one newspaper article, the SkiCo’s proposed snowmaking capa-
bilities would help draw skiers to the resort for 20 additional days in the fall
and 10 days in the spring. In addition, according to the SkiCo, the proposed
Burnt Mountain expansion could be financially justified only if snowmaking
was included with it. 1(1

The article cites a study done by a 70-member citizens’ committee for
Snowmass Village, which concluded that: “Occupancy in the town’s 2,700
rooms could increase by 30 percent for that time, drawing nearly $2 million
more in potential gross revenues.” The study assumed that tourists spend
$1.30 for each $1 spent on lodging, therefore $2.5 million in additional gross
revenues could be generated in the retail and restaurant sectors. It was esti-
mated that the SkiCo would bring in an additional $950,000 in gross sales. 11

In another article, Bill Lund, owner of Oxbow Outfitting in Snowmass Vil-
lage, noted that the success of retailers in Snowmass Village is directly related
to the number of skier days posted at the resort. He stated that, “If skier days

The Snowmass Creek Case

191

are up 5 percent, we’ll be up 5 percent - we’re very closely aligned.” 12 It is
important to realize that these are gross economic impacts for the local econ-
omy. They do not include the costs associated with servicing additional skiers
or the cost (approximately $7 million) of the SkiCo’s snowmaking system.
They also do not include costs to the community for additional ski-area busi-
ness, such as additional medical and bus services, as well as traffic congestion
and pollution. As indicated above, the increases in gross revenues are assumed
to accrue primarily within Snowmass Village. However, Aspen would reap
some of these economic benefits as well, as some Snowmass Ski Area visitors
stay in Aspen, the location of the SkiCo’s main headquarters.

3. Costs to other parties not at table

It is difficult to measure the lost potential gross revenues to the ski indus-
try since the agreement is so recent that there is no clear information on the
i ns t ream flow levels’ influence on snowmaking days. According to the negoti-
ated agreement, in an extremely diy year (one that occurs less than 5 percent
of the time) there would be no water available to divert for snowmaking pur-
poses. 13 This is the only scenario in which the SkiCo would have no water for
snowmaking, and that is when the ski industry would bear the full cost of
missed economic opportunities.

The SkiCo constructed snowmaking facilities on existing terrain in 1996,
and presently can provide snowmaking on 130 acres of the Snowmass Ski
Area. The main goal is to be able to provide an 18-inch artificial snow base
across this acreage by Christmas. The availability of water is a major con-
straint on this operation. The SkiCo’s expanded snowmaking capabilities are
reported to have saved two out of the three early winter seasons after the ne-
gotiated agreement took effect. 14 This represents a significant preservation of
ski industry revenues. During the 1998/1999 winter season, abnormally warm
temperatures hampered the effectiveness of snowmaking. At the Snowmass
Ski Area, 50 percent of the snow generated from the 1.5 million gallons of
water before Thanksgiving melted. This raises a question about the certainty
of economic revenues that are generally assumed to be attached to snowmak-
ing activities. Even with snowmaking operations in place, only a small frac-
tion of Snowmass opened by Thanksgiving Day during the 1998/1999 season.

It should also be noted that the preservation of instream flows in Snow-
mass Creek maintains or increases property values for residents in the Snow-
mass Creek Valley. A degradation of the creek’s natural ecology through re-
duced streamflows would likely have a negative effect on property values
within the valley.

See Part IV for a discussion of the costs resulting from the negotiated
agreement, the final result of the conflict resolution process.

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B. Financial Feasibility/Sustainability

The State assumed the role of monitoring and enforcing the modified in-
stream flow set out in the negotiated agreement. The Colorado Department of
Water Resources is charged with these tasks, and the CWCB is obligated to
legally uphold the negotiated agreement’s terms. Monitoring and compliance
are covered in more detail in Section IV.

C. Cultural Sustainability/Community Self-Determination

Comparative information on longer-term socio-economic variables is
available for the greater Snowmass Village area. However, changes in these
cannot be linked to the legislative agreement or to the subsequent follow-up
agreement. The area is a growing winter and summer resort with economic
activities that cannot be separated for purposes of looking at the agreement’s
effects. In addition, only three years have elapsed since the legislative and
follow-up agreements, which is not enough time for a meaningful measure of
the change in socio-economic variables.

The legislative agreement influences the decision-making authority/-
jurisdiction for altering instream flow rights. Before the agreement, it was
possible for the CWCB to unilaterally modify an existing instream flow right
without judicial review. With the legislative agreement, proposed modifica-
tions can be challenged by the public in local water court, and the CWCB
hearing process can be lengthened depending on concerns raised by members
of the public who attend the hearings. The decision-making authority for pro-
posed instream flow modifications has thus been amended to include local
interests in the form of the water court and can be influenced to a greater ex-
tent by local public input.

D. Environmental Sustainability

The legislative agreement specifies procedural requirements for the lower-
ing of existing instream flow rights, but does not address natural contingen-
cies. However, the legislative agreement was put to immediate use when the
parties reconvened in the follow-up process and developed a specific modifi-
cation of Snowmass Creek’s instream flows to account for drought years as
well as for seasonal streamflow patterns. This follow-up negotiated agreement
is described in more detail in the Overview and in Part IV.

The follow-up negotiated agreement sets minimum instream flow re-
quirements, as described in Table 7.1, and Part IV. This essentially commits
water to instream flow maintenance, with the quantity depending on the type
of moisture year. The Overview and Part IV describe the instream flow mini-

The Snowmass Creek Case

193

mums and water quantity available for snowmaking under the negotiated
agreement.

The AWW and SCCC appealed the CWCB’s initial recommendation to
lower Snowmass Creek’s winter instream flow right because they felt there
was a lack of environmental data. The SkiCO. CDOW, and SCCC made as-
sessments of the lower winter streamflows on the creek’s fishery and ad-
dressed environmental impacts in this manner. There was controversy over the
various conclusions of these assessments.

The AWW and SCCC can be classified as environmental groups. The
SCCC is also a community group that focuses on issues within the Snow-
mass/Capitol Creek drainages. The SCCC commissioned its own scientific
study on the effect of lower streamflows on Snowmass Creek’s aquatic fishery
habitat. The CDOW consulted with the SkiCo (which had also done its own
aquatic study in cooperation with the CDOW) and the CWCB, and provided
its analysis of the impact of lower streamflows on the fishery. The CDOW is
the agency responsible for providing biological research and recommenda-
tions to the CWCB for proposed new instream flow rights or changes to exist-
ing instream flow rights.

E. Clarity of Outcome

There has been no evidence found of later misunderstandings about the
agreement. The baseline conditions used as reference points in the agreement
seem well-defined. The original 1976 instream flow appropriation was set at
12cfs year-round, establishing the baseline. However, subsequent litigation
between the SCCC and the SWSD over senior water rights (senior to the in-
stream flow right) has led to disagreement over the baseline.

F. Feasibility/Realism

1. Legal feasibility

The legislative agreement is consistent with existing law. The negotiated
agreement was written in compliance with the legislative agreement.

2. Political feasibility

SB 64 is the legislation needed to allow for the creation of an outcome like
the negotiated agreement. It is unknown if representatives from the AWW and
the SCCC are ensuring that the provisions of SB 64 are being upheld. Also,
there are no known indications that SB 64 is difficult to administer.

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Chapter Seven

3. Scientific and Technical Feasibility

One of the reasons that the CDOW allegedly agreed to lower minimum in-
stream flows on Snowmass Creek was that it made a “computational error”
when it first made its flow recommendation in 1976. Scientific studies from
both sides became a critical force in the procedural aspects of the proposal to
lower flows, and in determining the modified flows contained within the ne-
gotiated agreement. In 1996, CWCB Director Chuck Lyle stated:

Given the complexity of both the scientific and legal issues in-
volved in this case, the state was extremely fortunate to be working
with highly professional and technically competent advocates on
both sides who were willing to negotiate in good faith to arrive at
what we believe to be a recommendation that is based on the best
available science and achieves that delicate balance between human
and environmental needs.

The most recent effort by environmental groups to restrict the SWSD’s
Snowmass Creek diversions is seeking the negotiated agreement as the out-
come, based on its scientific credibility.

G. Public Acceptability

An editorial by A1 Knight in the Denver Post criticized the lead-up to the
legislative agreement (the Colorado Supreme Court’s overturning of the
CWCB’s initial proposed Snowmass Creek instream flow modification). He
argued that the ruling, which requires that instream flow modifications go
through the water court, will lead to a more confusing, expensive, and time-
consuming process. 15 Several letters to the editor rebutted his comments. No
information was found that specifically addressed the public’s perception of
the two agreement outcomes.

IV. CRITERIA CATEGORY: RELATIONSHIP OF
PARTIES TO OUTCOME

A. Satisfaction/Fairness

There is little information on the perceptions of the agreement, as it is de-
fined for this case (i.e. Senate Bill 64). One reason is that so much occurred
before the passage of Senate Bill 64 that received attention and scrutiny. In
response to the 1995 Supreme Court decision, one press article quoted a
member of the CWCB as saying, “I’m certain we’ll go wherever we need to

The Snowmciss Creek Case

195

go, to water court or to the legislature. I think we’ll do what we need to do to
have our role clarified .” 16 Lori Potter, the Sierra Club Legal Defense Fund
(SCLDF) attorney representing the AWW, said in the same article of the Su-
preme Court ruling: “It's a great victory for Snowmass Creek and for citizens
that hold their government accountable.” In the article, the SkiCo was noted
as having no comment, other than to say it would study the issues and its op-
tions. From this and other available information, it appears that the AWW and
SCCC felt that the legislative agreement contained a “fair” procedure for in-
stream flow modification.

The legislative agreement was implemented about two months after it was
passed, in the form of a specific negotiated modification of Snowmass
Creek’s instream flow standards utilizing the new procedural requirements.
The specifics of this negotiated agreement are covered in the Overview sec-
tion. In a “News & Information” press release from the CWCB, Lori Potter
said of the final instream flow agreement: “This creek is really the big winner
here. This is a settlement that protects the stream and ends the controversy .” 17
CWCB Director Chuck Lile is quoted as praising the process of good faith
negotiation between the parties, and the use of the best available science in
achieving a positive outcome.

In this same press release, SkiCo Vice President Fred Smith stated: “Our
goal throughout this process has been to improve our snowmaking operations
while preserving the environment of Snowmass Creek. We are pleased that
the parties have been able to agree upon an approach that will accomplish
both of these goals. This will benefit both our community and our environ-
ment.” And Sue Helm of the SCCC noted: “We’re thrilled with the outcome.
Our interest has been to protect the ecology of the valley, which includes
Snowmass Creek. We feel the stepped hydrographs do balance the needs of
man with protection of the environment to a reasonable degree. We hope this
agreement in conjunction with the recently passed legislation sets a positive
precedent for future modification of instream flows .” 18

Based on these comments, all active parties in this case study were pleased
with the outcome. They followed the new procedural guidelines stipulated in
the legislative agreement to arrive at this outcome, and felt it was the best so-
lution to the conflict.

B. Compliance with Outcome Over Time

Compliance with the legislative agreement is evident in its immediate im-
plementation through the official development and processing of the negoti-
ated agreement. The legislation specifically states that any instream flow
modifications must be filed with the appropriate water court, which provides
an additional channel for approval of such proposed modifications.

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Chapter Seven

No information has been found to indicate non-compliance with the nego-
tiated agreement. There was a report of a four-day period in January 1999
when Snowmass Creek streamflows fell below their designated levels based
on the instream flow modification (negotiated agreement). The SWSD took
responsibility for the low flows, stating that it needed extra water for domestic
use, as allowed by its senior water rights. SWSD officials were quoted as say-
ing that the low flow levels were not a result of snowmaking activities in ex-
cess of what was allowed by the negotiated agreement. 19 Since the negotiated
agreement, under any scenario, mandates a stoppage to snowmaking after De-
cember 3 1 st , water diversions that draw Snowmass Creek below the minimum
instream flows would presumably be for the domestic system, the SkiCo
failed to comply with the agreement. The fact that this issue was questioned in
January of 1999, and that the USFS staff investigated the incident, indicates
that there remains skepticism within the community about the SkiCo’s com-
pliance with the negotiated agreement.

C. Flexibility

The legislative agreement is flexible in the sense that it only governs the
process, and allows the introduction of specific scientific recommendations
for instream flow and habitat protection, as in with the negotiated agreement.
Neither agreement has been modified.

D. Stability/Durability

The legislative agreement contains general provisions for making instream
flow modifications in Colorado, so it is difficult to assess the agreement’s sta-
bility.

The negotiated agreement created a compromise that allowed both for
snowmaking and environmental protection of Snowmass Creek. Because of
the agreement’s stairstep hydrograph, which defines the amount of water
available for snowmaking diversion based on four different moisture year
scenarios, there are very specific criteria for achieving this balance, which
provides for stability. As already noted, the SkiCO, the AWW, the SCCC, the
CDOW, and the CWCB embraced this agreement at the time that it was
crafted. It is assumed to address the needs of both sides, based on the type of
moisture year.

The CWCD is responsible for providing adequate monitoring equipment at
the Snowmass Creek pipeline diversion. It has installed a state-of-the-art sat-
ellite monitoring station, which will become operational for the 2000/2001
winter season. The satellite gauge, which will generate continuous flow data,
will be operated and maintained by the Colorado Department of Water Re-
sources Division 5. Since inception of the negotiated agreement, the Depart-

The Snowmass Creek Case

197

ment of Water Resources has participated in measuring streamflows. The day
after the specific follow-up agreement was developed between the CWCB,
SCCC, AWW, SkiCo and CDOW, the SCCC sued the SWSD for breach of the
’78 Agreement. This was precipitated by the SWSD’s continuous claim to
senior water rights on Snowmass Creek, which it did not feel were affected by
the ’78 Agreement. The issue has received much attention in the press. In one
article, the SWSD Board Chairman, Mike McLarry, was quoted as saying he
would bring flows in Snowmass Creek down to dry creekbed “if I had to,”
(i.e. to service the growing Snowmass Village community). In an Aspen Times
Daily article, McLarry claimed this quote was taken out of context. The article
proceeded to say that he would honor the ’78 Agreement with regard to
streamflows, although if an emergency arose, he insisted he would “suck” the
creek dry. 20 According to the article, members of the AWW and the SCCC
expressed shock over McLarry’ s comments.

The SWSD did not openly participate in the instream flow modification
debate, so a new party actively entered the debate at this stage. The resulting
lawsuit against the SWSD was ultimately dismissed, with a ruling that it had
not violated the terms of the ’78 Agreement. The SkiCo was not visibly allied
with the SWSD in this new phase of the conflict. With regard to the litigation,
Pat O’Donnell, President of the SkiCo, stated in a local newspaper article that
“We’re bystanders. ...The skiing company doesn’t have any leverage with the
(water and sanitation) district.” 21

V. CRITERIA CATEGORY: RELATIONSHIP BETWEEN
PARTIES (RELATIONSHIP QUALITY)

A. Reduction in Conflict and Hostility

As of 2000, the situation is escalating between the SCCC and the SWSD,
the two parties in the lawsuit decided in 1998, who are now engaged in addi-
tional legal proceedings. There is no indication of any hostility between the
parties that participated in the i ns t ream flow modification conflict. The SkiCo
has not been visibly associated with the SWSD in the most recent rounds of
litigation, but its allocation of water for snowmaking is threatened if the
SWSD loses in any of these proceedings challenging its compliance with the
’78 Agreement and 404 permit stipulations. In a newspaper article containing
press release information from the coalition of environmental groups taking
the latest action against the SWSD, the groups make a point to state that there
is enough water to allow for snowmaking during the winter’s early season,
and they are not out to stop snowmaking activities. 22 An Aspen Times editorial
highlights the SWSD’s unrelenting stance: “District officials have let it be

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known that they will draw down the creek to whatever level they deem neces-
sary to serve their customers, regardless of the terms of the agreement or the
needs of the trout.” 23 And the SWSD openly celebrated its lawsuit victory in
1999. Mike McLarry, SWSD’s board chair, was quoted as saying: “It’s vindi-
cation on the district’s part. We always knew we were right.” 24

B. Improved Relations

The starting point in this conflict revolves around senior water rights and
an agreement made at the time of the Snowmass Creek diversion’s approval
(the ’78 Agreement). The quality of the relationship has changed over time,
with the parties involved in the ’78 Agreement (the SWSD, AWW, SCCC, and
Pitkin County) presently debating its content. Even though it was a written
agreement, the fact that these parties have engaged in two legal proceedings
shows a lack of trust. The tone of the SWSD has been negatively portrayed in
the press (described in Part IV).

C. Cognitive and Affective Shift

In the middle of the conflict resolution process, a Snowmass Village coun-
cil member was quoted in the media saying: “The residents of Snowmass and
Capitol Creek do not see the benefit from ski area expansion.” He explains
that while snowmaking diversions will make Snowmass Creek less attractive,
this use of water is the best decision for the community. He concludes: “I
don’t think we’re going to resolve this thing as friends and neighbors. We’re
enhancing our property values at the expense of theirs.” 25 Although Snow-
mass Village was not a party in the instream flow modification conflict, this
sentiment represents the SkiCo’s interests as well. The SCCC is portrayed as
inflexible, focused strictly on its neighborhood, and unwilling to support the
growing economy of Snowmass Village.

In a brochure to solicit funding to help appeal the CWCB’s initial instream
flow modification, the SCCC describes the SWSD’s interest as shortsighted
and driven only by money. The brochure states: “SWSD wants more water.
They want to sell it to the SkiCo for snowmaking, and for more development
in Snowmass Village. The cheapest way to get water is to divert from Snow-
mass Creek and pump it over the mountain.” 26 Despite these views, the par-
ticipating parties managed to come up with the negotiated agreement. How-
ever, in the long term, these views demonstrate larger differences that have
driven the conflict once again into litigation.

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199

D. Ability to Resolve Subsequent Disputes

The fact that the follow-up negotiated agreement was developed shortly
after the legislative agreement is a good indication that the parties at the table
in this case study proceeded in a constructive manner. They were able to
achieve a consensus that required some sacrifice for both sides, which also
required a good relationship during the negotiation process. There were no
professional mediators involved in the process leading up to the two agree-
ments.

Since the SCCC sued the SWSD in 1996, there have been no signs of con-
structive methods to solve the conflict over the ’78 Agreement. The United
Neighborhoods Fund (UNF) entered the conflict in 1995, spending its own
privately generated funds to try to develop an alternative water supply that
would solve the debate. However, neither the SkiCo nor the SWSD were will-
ing to work toward such a solution.

E. Transformation

The SCCC and other members of the coalition of environmental groups
that petitioned the Corps regarding the validity of the 404 permit have ac-
knowledged that there is enough water for early season snowmaking. 27 This
reflects an important step in the relationship between the environmental inter-
ests and the SkiCo. The continued atmosphere of conflict, however indicates
that there has been no progress among the stakeholders (including the SWSD)
to resolve this broader debate.

VI. CRITERIA CATEGORY: SOCIAL CAPITAL

A. Enhanced Citizen Capacity to Draw on Collective Poten-
tial Resources

1. Aggregate of resources

In 1998, the SkiCo created a Department of Environmental Affairs and ini-
tiated the Aspen Skiing Company Environmental Foundation. The latter is a
non-profit employee organization dedicated to protecting and preserving the
regional environment. This program has contributed significantly to the re-
sources available for addressing community environmental issues and pro-
jects. It also has increased citizen participation and the formation of partner-
ships in such efforts. In its first two years, the Foundation leveraged over

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$200,000 for environmental protection in the Roaring Fork Valley. Funds are
put toward projects that support environmental education, ecosystem protec-
tion, natural resource stewardship, and outdoor recreation. Specific to the area
of stream flows, the Foundation has supported water conservation, water qual-
ity monitoring, and stream restoration initiatives within the Valley.

While the environmental emphasis did not arise directly from the Snow-
mass Creek debate, it signified an evolution in the general philosophy of the
SkiCo that the natural resource base it relies upon must be preserved. The
SkiCo has received several prestigious environmental awards since the incep-
tion of its environmental programs, which help its reputation as a “green” ski
resort.

The Foundation represents an important collection of resources that are
available to various community interests. In this way, it brings together busi-
nesses, schools, environmental interests, and governments in collaborative
approaches to solving environmental challenges.

The SkiCo’ s “Green Development” program is one initiative that relates
directly to the water conservation issues at the forefront of the Snowmass
Creek conflict. This program approaches construction, management, and
planning with the goal of reducing the impact of buildings and development
on the environment. One of the key considerations in green building is the
efficient use of water, energy, and other resources. The SkiCo has also con-
sidered environmentally sensitive designs within the Snowmass ski area,
through the development of a long-term natural resource management plan
that includes wildlife habitat and vegetative diversity. In addition, the Founda-
tion has supported specific stream habitat projects including cutthroat trout
restoration, water quality monitoring, and WaterWise school programs.

The CWCB and Department of Water Resources have increased their
presence in the area, through increased monitoring capabilities and activity in
support of both the negotiated agreement and the instream flow donation
made by the Conservation Fund (discussed below). This increased commit-
ment of state resources represents better networking and the availability of
more information to the community.

2. Potential assistance relationships

In 1998, the Conservation Fund, in collaboration with the SCCC, donated
a summer irrigation right on Snowmass Creek (the lower reach) to the CWCB
for instream flow. This donation has been formalized and represents a respect-
ful partnership between actors in the Snowmass Creek conflict, namely the
CWCB and SCCC, to enhance instream flows on Snowmass Creek and the
Roaring Fork River.

The Snowmass Creek Case

201

3. Generalized reciprocity

Other than the streamflow monitoring done by the State, and the imple-
mentation of the negotiated agreement’s stipulations, which are applied to the
SkiCo’s snowmaking operations, there has been no evidence of regular net-
working, assistance, or mutual recognition among the participants in the con-
flict.

B. Increased Community Capacity for Environmental/Policy
Decision-Making

1. Aggregate of resources

The parties in the Snowmass Creek debate have not arrived at a point
where they share resources, jointly hold or attend meetings, divide tasks, or
develop a more unified decision-making structure.

2. Increased System Efficiency

The continuation of the conflict has not created an environment conducive
to increased system efficiency.

3. Increased Capacity for Cooperation

The increased capacity for cooperation has been somewhat one-sided in
the sense that the environmental interests involved in the issue have ex-
panded. They include the Public Counsel of the Rockies, American Rivers,
the Sierra Club, the SCCC, the AWW, Windstar Land Conservancy, the Fer-
dinand Flayden Chapter of Trout Unlimited, Roaring Fork Audubon, and High
Country Citizens Alliance. This coalition represents a mixture of local, re-
gional and national interests that complement each other in providing various
functions in the latest stage of the debate. Except for this expansion, there has
been little development among the actors in handling the conflict construc-
tively, utilizing broader sources of information, or bringing in objective me-
diators.

4. Increased System Capacity for Responding to External Challenges

The donation by the Conservation Fund, in collaboration with the SCCC,
of the summer irrigation right for instream flow to the CWCB shows the
capacity to work together at the outset of a challenging situation. The CWCB
is not accustomed to handling such donations, yet the involved partners stuck

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with the challenge and brought about a positive final outcome. On the other
hand, the SWSD’s role in the original conflict has become more prominent,
which has resumed its role as an adversary against the SCCC’s claims.

5. Increased Information Flow

Actual flow data has become more available and accessible as a result of
enforcement of the negotiated agreement. In general, instream flow issues in
the Roaring Fork Valley have taken on greater importance since the develop-
ment of the agreements covered in this case study. One result of this is the
increased awareness among jurisdictions such as Aspen about the potential
effects of snowmaking on other creeks. There is an effort to obtain greater
gauge coverage throughout the upper valley to track flow data in relation to
this issue.

C. Social System Transformation

The Snowmass Creek issue has led both to a change at the state level, with
the development of the legislative and negotiated agreements, and over time
has created a level of transformation within the local social system. As previ-
ously described, the SkiCo’s newly established environmental focus and asso-
ciated contributions to local environmental causes represents an important
support network for the community. Since the agreements were determined,
the SkiCo has also invested in additional on-mountain water storage to allevi-
ate its dependency on direct diversions from Snowmass Creek for snowmak-
ing. The general community tone is one of increasing trust of the SkiCo’s en-
vironmental stewardship philosophy, although close attention continues to be
paid to its activities, especially in light of a new proposed residential and
commercial development at the base of the Snowmass Ski Area in Snowmass
Village.

1 SB 64 is what is referred to as the “legislative agreement” for this case study.

2 This follow-up agreement, specific to Snowmass Creek, is referred to as the “negotiated

agreement” for this case study.

Colorado Water Conservation Board, “Memorandum: Summary Report and Final Recom-
mendation on Snowmass Creek Modifications,” (Denver. CO, June 25, 1996).

4 “Give money to RFTA, not to the SkiCo,” Aspen Times, November 1 1-12, 1995.

5 Jim Pokrandt, "Water District Finds Vindication in Check From Caucus,” Snowmass Village

Sun, June 30-July 6, 1999.

6 Cameron Burns, Colorado General Assembly; Colorado Environmental Compliance Update,

Denver Post.

Snowmass/Capitol Creek Caucus, “The Fight to Save Snowmass Creek,” October, 1993.

8 Cameron Burns, “Snowmass Gives Earful to Pitco Commissioner,” Aspen Times Daily, Feb-

ruary 1993.

The Snowmass Creek Case

203

9 Jim Pokrandt, “New Solution Eyed For Water Use,” Snowmass Village Sun. January 1-7,

1997.

10 Scott Condon, “SkiCo: Snowmaking Must Come First,” Aspen Times, January 1, 1993.

“ibid.

12 Janet Urquhart, “Merchants Count on Snowmaking Boost,” Aspen Times, March 23, 1996.

13 Colorado Water Conservation Board, “Memorandum: Summary Report and Final Recom-
mendation on Snowmass Creek Modification,” Denver, Colorado, June 25, 1996.

14 Jim Pokrandt, “Water District Finds Vindication in Check From Caucus,” Snowmass Village

Sun, June 30-July 6, 1999.

15 Editorial, A1 Knight, “Snowmass Creek Decision Isn't About Good Versus Evil,” Denver
Post, July 9, 1995.

16 Cameron Burns, “Snowmass Gives Earful to Pitco Commissioner,” Aspen Times Daily, Feb-
ruary 1993.

17 Colorado Water Conservation Board, “Memorandum: Summary Report and Final Recom-
mendation on Snowmass Creek Modifications,” 1996a.

18 Colorado Water Conservation Board, “Agreement Reached on Snowmass Creek Streamflow
Dispute,” 1996b, From News & Information section on website, June 28, 1996.
http://www.dnr.state.co.us/cdnr_news/cwcb/9703221154958.html.

19 Jim Pokrandt, “Domestic Uses, Not Snowmaking Spurred Snowmass Creek Draw,” Snow-
mass Village Sun, February 17-23, 1999.

20 Cameron Burns, “Snowmass Gives Earful to Pitco Commissioner,” Aspen Times Daily, Feb-

ruary 1993.

21 Curtis Robinson, “New Eco Group Causes Some Uneasy Feelings,” Roaring Fork Sunday, 6-

7, January 5-11, 1997.

22 Scott Condon, “Snowmass Creek Under Attack,” Aspen Times Daily, 1-A/15-A, July 14,
2000 .

23 Editorial, "The Troubled Waters Of a Beautiful Creek,” Aspen Times Weekly, 22A, January
4-5, 1997.

24 Jim Pokrandt, “Water District Finds Vindication in Check From Caucus,” Snowmass Village

Sun, June 30-July 6, 1999.

25 Cameron Burns, “Snowmass Gives Earful to Pitco Commissioner,” Aspen Times Daily, Feb-

ruary 1993.

26 Snowmass/Capitol Creek Caucus, “The Fight to Save Snowmass Creek,” October 1993.

27 Scott Condon, “Snowmass Creek Under Attack,” Aspen Times Daily, 1-A/15-A, July 14,
2000 .

Part III

COMPARING THE CASES;
TESTING THE FRAMEWORK

Chapter Eight

PATTERNS IN ENVIRONMENTAL CONFLICT
RESOLUTION

Comparisons Across Cases

Coral is set budding under seas,

Though none, O none sees what patterns it is making?

Philip Larkin (1922-1986), British poet.

“A Stone Church Damaged by a Bomb. ”

In this chapter, we discuss our observations and make note of interesting
patterns across the eight cases in our original study, four of which are fully
documented in Chapters 4-7. While these cases are not an adequate sample for
confidently generalizing at the level of statistical significance about large
groups of cases, a comparison among the cases reveals useful patterns and
questions for future research. This comparison is organized by criterion. Not
all of the twenty-eight criteria are discussed, for two reasons. Either the crite-
rion was not yet in the framework at the time of case analysis, or the criterion
was defined, but there was not adequate information to be gathered by case
researchers (see Chapter 9 on criterion accessibility).

To further our goal of comparative case evaluation, we found it helpful to
give cases ratings or ‘grades’ on each of the criteria in our framework. These
do not represent formal ratings, but provide a summary sense of relative merit
and a sense of ranking. Arraying these in Table 8.1 also presents a visual ‘re-
port card,’ both for the cases (column) and in the sense of distribution on a
given criterion (row). Grades of A-E are used, with ‘E’ the lowest ‘grade.’

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Not all criteria on which data had been collected had adequate data to permit
this summary ranking. We discuss criteria quality further in Chapter 9.

In this chapter, we also offer observations across conflict resolution proc-
esses (litigation, negotiation, etc.). These are tentative observations, given the
small number of examples of each type of conflict resolution process. How-
ever, they suggest areas for further research, exploration by conflict resolution
professionals, and strategies for more effective social policies to address con-
flict.

I. OUTCOME REACHED

This category contains criteria that assess the basic achievement of reach-
ing an outcome in the conflict resolution process. The Outcomes analyzed in
the eight cases represent several types of conflict resolution outcomes includ-
ing: a series of related court rulings in the Big Horn case; an administrative
rule issued by a federal agency in the Lower Colorado River case; state legis-
lation (spurred by litigation) in the Edwards Aquifer case; a state agency ad-
ministrative ruling (also spurred by litigation) in the Mono Lake case; a U.S.
Supreme Court ruling and stipulated agreement in the Pecos River case; a ne-
gotiated agreement modified and ratified by Congress in the Pyramid Lake
and Salt River cases; and state legislation initiated (and followed) by negotia-
tions in the Snowmass Creek case. Most cases involved several different con-
flict resolution processes that resulted in sequential Outcomes of different
types (e.g. litigation and court ruling, followed by negotiations, negotiated
agreement and legislation). Nevertheless, the cases can be classified for the
purposes of comparison according to the type of Outcome. The Outcomes
included two court rulings (Pecos River, Big Horn), two administrative ac-
tions (Mono Lake, Lower Colorado River), a pair of negotiated agreements
accompanied by federal legislation (Pyramid Lake, Salt River), one negotiated
agreement accompanied by state legislation (Snowmass Creek), and one Out-
come reached through state legislation (Edwards Aquifer).

It was not easy to decide which Outcome should be the focus of the analy-
sis, given the long history of each case. In general, analyses focused on the
most recent formal Outcome as of 1998, when the case analysis process be-
gan. Each case involved prior formal Outcomes that were not the focus of
analysis. However, these prior court rulings, negotiations, and legislative and
administrative acts are included in the case histories. In some cases, formal
Outcomes were reached subsequent to the analysis. These may not be re-
ported in this book, due to the necessity of selecting a window of time in
which to analyze each case. All of the cases remain active in the sense that at
a minimum, issues remain to be worked out regarding implementing the Out-
come that we analyze, or resolving an issue that had not been adequately ad-

Patterns in Environmental Conflict Resolution

209

dressed previously. In some cases, litigation, negotiation, or legislation may
be ongoing.

A. Unanimity or Consensus

Initially (and throughout our case analysis), the Unanimity or Consensus
criterion focused on negotiated agreements and sought to assess the strength
of approval for the agreement, the degree of dissension at the table, and the
absence of key parties. It has been subsequently modified to encompass other
forms of Outcomes, such as legislative acts and court rulings.

In three of the four cases that involved legislation (Pyramid Lake, Snow-
mass Creek, Edwards Aquifer), unanimity or consensus clearly was not
achieved since some parties opposed the legislation. There was no active op-
position to the federal legislation noted in the Salt River case. While not re-
corded in our original case analyses, the voting records of the enacting legisla-
tive body could indicate whether the legislature was universally supportive or
deeply divided over the legislation, and could also reveal regional attitudes
toward the legislation.

With respect to court rulings, in at least one of the Big Horn case rulings
the five judges were divided over several key issues and wrote separate opin-
ions outlining a majority and a dissenting view.

The ruling of the California State Water Board was unanimous in the
Mono Lake case. In the two cases focused on negotiation, there were parties
that chose not to attend or to end their participation.

In comparing the cases on the criterion of Unanimity/Consensus, we rank
the Salt River negotiated agreement and congressional legislation highest (A),
along with the administrative ruling in the Mono Lake case. Not only was the
Mono Lake ruling a unanimous decision of the State Board, but it also seemed
to reflect consensus-oriented dialogue among the stakeholders. The Lower
Colorado River case is ranked B (medium-high), followed by three cases
ranked C (medium). Three of the cases (Pyramid Lake, Snowmass Creek, and
Edwards Aquifer) made substantial progress in reaching a consensus among
disparate stakeholders, even though there was still dissent among them. The
Pecos River case (ranked D) also achieved some degree of consensus after
active litigation, while the Big Horn case (E) epitomizes the absence of con-
sensus.

B. Verifiable Terms and

C. Public Acknowledgement of Outcome

These criteria assess the level of ambiguity concerning the completion of
the process. An acknowledgement that an outcome has been achieved is a ba-
sic prerequisite for the closure of a conflict resolution process. The Verifiable

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Terms criterion seeks to verify that there was consensus on the terms of the
Outcome. The subsequent criterion. Public Acknowledgement of Outcome ,
looks for public confirmation that an Outcome was reached.

The Outcomes of all eight cases were formalized as written documents.
These documents were made publicly available once the Outcome had been
announced (e.g. the legislation had been enacted, the court had ruled). Media
sources provided evidence that the Outcome was made public and acknowl-
edged in public forums, such as newspapers and television coverage. There
did not appear to be significant differences among the types of Outcomes for
these criteria, and they are each ranked medium (C) on this criterion.

D. Ratification

Ratification can take different forms. For instance, the passage of legisla-
tion to address an environmental conflict may require court approval. Negoti-
ated agreements generally require ratification by their signatories (e.g., vote of
board, referendum or resolution). This action may occur either before or after
the Outcome is reached. The ratification criterion considers whether the rele-
vant governing bodies have formally approved the Outcomes. This does not
include other types of follow-up actions, such as legislative appropriations
that provide the money needed to implement an agreement. These follow-up
implementation actions are covered under IV. B., Compliance Over Time.

The two cases which featured a court ruling in their Outcomes (Pecos
River, Big Horn), did not require a ratification of the court’s decision by other
bodies of government. The follow-up activities required to comply with these
ruling(s) are reported under Compliance (IV.B) and Stability/Durability
(IV.D).

Enacted legislation has, by definition, been ratified by a legislative body.
Several cases which involved prior court rulings (e.g. Pyramid Lake, Edwards
Aquifer) required a legislative Outcome that was consistent with the require-
ments of the courts. However, the courts do not generally scrutinize the legis-
lation, unless requested to do so by a party that has standing in the legal cases.
In the Edwards Aquifer case, the state legislation was reviewed by the courts
after parties filed several different lawsuits in objection to the legislation.

Legislation from one level of government may spur related legislation by
other governments. This is not considered formal ratification, but does repre-
sent a follow-up action by the affected governments, as discussed in IV. B.

Congress ratified the negotiated agreements in the Pyramid Lake and Salt
River in a modified form and these are ranked A. The Snowmass case in-
volved a local agreement that needed to be filed with the Colorado Water
Court. That filing was not completed until several years after the case was
analyzed, which suggests that either lingering issues may have remained or

Patterns in Environmental Conflict Resolution

211

the parties did not appoint someone to undertake this filing in a timely man-
ner.

The absence of ratification by relevant governments may not necessarily
indicate a problem. It could simply mean that formal procedures are slow and
unintended lapses may occur.

Ratification is not required for administrative rulings, but, as with court
rulings, follow-up actions from other governments may be required. As with
legislative outcomes, dissatisfied parties may request the courts to evaluate
administrative rulings. Such follow-up litigation is reported in IV. D (Outcome
Stability/Durability). No cross-case comparisons are provided for ratification
because this criterion only applies directly to negotiated agreements.

II. PROCESS QUALITY

This category contains criteria that focus on the quality of the process that
was used to achieve an Outcome.

A. Procedurally Just

This criterion seeks to ascertain various perceptions concerning the justice
of the process. Was the process fair, balanced and complete? Did it thor-
oughly address the issues and the parties, or did time constraints or power im-
balances compromise it? This includes the parties’ perceptions of fairness and
their satisfaction with the procedure, which research suggests are combined
by raters . 1 These measures of procedural fairness are to be distinguished from
“Outcome fairness” discussed under the next category. Outcome Quality.

While various types of formal procedures were utilized in each case, few
processes escaped criticism. Of the eight cases examined, only one (Mono
Lake) seemed to satisfy the parties that the procedure was just in all ways.
Legislative Outcomes were perceived as rushed in both cases where they were
used to resolve the conflict rather than to ratify previously negotiated agree-
ments (Edwards Aquifer and Snowmass Creek). In contrast, it was specifi-
cally noted that administrative processes were not mshed (Mono Lake, Lower
Colorado River). Interestingly, there was no evidence of complaints that these
administrative processes were “too slow,” which would be another potential
procedural criticism. Perhaps the formality of their procedures lends credence
to the belief that “this is what needs to take place.” One litigation case (Pecos
River) was seen as long and protracted.

The processes in the Mono Lake and Salt River cases were seen as inclu-
sive and inviting of all views. Cases in which people felt excluded, and which
were criticized for the lack of public involvement or debate were mainly ne-
gotiations (Pyramid Lake, implementation of Lower Colorado River, imple-

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mentation of Snowmass Creek), and one case of litigation (Big Horn). This
contrast is interesting for a number of reasons. Negotiations often occur be-
hind closed doors to allow parties to consider new ideas without media atten-
tion and public commitment. This may give the perception that some parties
and/or views have been excluded or neglected. On the other hand, administra-
tive processes are structured to require public comment and to allow for the
expression of all views, therefore lending the perception that they have indeed
included all views. One negotiated case (Salt River) was a notable exception
to this as it was seen as attending to all interests. It would be interesting to
determine why the negotiations in this case were perceived as more inclusive
than the negotiations in other cases.

Perceptions of bias (Edwards Aquifer, Lower Colorado River implementa-
tion, Pyramid Lake, Salt River, Snowmass Creek) seemed to occur more often
in cases with negotiation or legislation, while perceptions of fairness were
noted in two cases (Pecos River, Mono Lake) that used more formal proce-
dures (litigation, administrative rulemaking). These perceptions of fairness
were often affected by the perception of inclusion (Lower Colorado River
implementation. Pyramid Lake, Salt River). The more the parties felt they
were included in the process, the more likely they were to determine the proc-
ess to be fair.

Linally, the ability of parties to influence the decision unequally, in short,
perceptions of “unequal weight,” were also noted (Edwards Aquifer, Lower
Colorado River implementation. Pyramid Lake, Salt River). Some might ar-
gue that certain parties deserve more weight in a decision, such as the admin-
istering agency in a rulemaking procedure. However, it is interesting to note
that these cases were not the ones noted as having parties with unequal
weight. Rather, the processes of negotiation and legislation, where the struc-
ture may be perceived as inviting parties as equals, were seen as unfair. In
negotiation there may be an “assumption” or expectation of equal opportunity
that is not found in litigation or rulemaking. This assumption can prove to be
a source of disillusionment when it does not in fact materialize.

Thus, in comparing across cases, only Mono Lake rates an ‘A’ for its satis-
faction of procedural justice concerns. Lower Colorado River, Salt River, and
Pecos River rated a ‘B’ in that they addressed most procedural justice con-
cerns, though perceptions of unequal weight of some parties’ views were
noted in the first two, and the latter was perceived as unnecessarily long. Both
Pyramid Lake and Big Horn had very mixed reviews on procedure, and thus
rated a ‘C’. Researchers for the Snowmass Creek and Edwards Aquifer cases
documented perceptions of multiple procedural injustices, including haste,
bias, and inadequate attention to underlying concerns, and rated a ‘D’.

Patterns in Environmental Conflict Resolution

213

B. Procedurally Accessible and Inclusive

This criterion seeks to ascertain the actual availability of three components
that contribute to perceptions of procedural justice. First, did opportunities for
public participation exist? Second, did the public have access to information
on upcoming opportunities to participate? Third, did the public have access to
substantive and technical information on issues? The first asks for details
(dates, timing, location, attendance, and effectiveness) of any public hearings,
town meetings, surveys, hotlines, citizen boards, or other forms of public out-
reach and polling. The second component looks for notes on attempts to no-
tify the public, as well as the nature of the contact medium. The third compo-
nent more specifically addresses public access to information on issues.

In several of the cases (Edwards Aquifer, Lower Colorado River, Mono
Lake, Snowmass Creek), opportunities existed for public participation in deci-
sion-making, or at least for public “input.” Certain procedures actually avoid
public comment. Litigation procedures seem to rule out public comment,
though hearings may be open for observation and input is sometimes accepted
through briefs (Big Horn, Pecos River). Negotiations may intentionally be
“kept discrete” or closed to public view (Salt River, Lower Colorado River),
or they may ‘unintentionally’ reduce input by failing to adequately notify par-
ties or the public (Snowmass Creek).

The efforts to notify the public varied widely. Here ‘the public’ is defined
as local citizens who may or may not be direct stakeholders. Administrative
rulemaking requires public notice and comment, so these cases (Mono Lake,
Lower Colorado River) typically provided extensive opportunities for com-
ment, although publicity of these opportunities may have been narrow and
limited (e.g., confined to newspaper announcements and Federal Register).
Though legislation cases typically had many hearings or citizen committees,
the case reports suggest that information on these hearings and meetings was
not always widely announced (Edwards Aquifer, Pyramid Lake, Salt River,
Snowmass Creek).

In general, across cases of all types it seems that public notice and access
to information was limited. The apparent lack of public notice may stem from
two sources. First, it may be genuine because parties may expend minimal
effort in order to conserve resources, or simply may not consider the many
ways that public views could be solicited and incorporated. Or it may be spu-
rious, in that some forms used to notify the public (radio broadcasts, paid ad-
vertisements) may not be archived and thus inaccessible at a later date by re-
searchers.

The Mono Lake and Lower Colorado River cases are rated ‘B’, with mul-
tiple opportunities for public comment and access to information, though pos-
sibly not as widely publicized as would be ideal. Edwards Aquifer and
Snowmass Creek also presented opportunities for comment and/or informa-

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tion; however, evidence suggests that in these cases public notice or access to
information was not adequate, and they have a ‘C’ rating. Pyramid Lake suf-
fered from inadequate notice, to the point of accusations of ‘clandestine’
processes, and so receives a ‘D’ rating. Salt River also had little of its proc-
esses open or accessible. We tentatively assign it a ‘D’, while recognizing that
this may have been considered appropriate for the process used. Finally, both
court rulings (Pecos River and Big Horn) were not required to use accessible
and inclusive processes, suggesting no ratings for these cases. However, the
Big Horn case required the publishing of information on “Walton” rights in
the newspaper, thus seeming to merit at least a ‘C’ rating for providing the
public with access to related information.

C. Reasonable Process Costs

This criterion examines the costs associated with the process being ana-
lyzed, and organizes the cost information into three categories according to
who bears the costs. Process costs are considered “reasonable” when they are
(or are perceived as) proportionate to the magnitude of the conflict and the
assets at stake. For a complex multi-party dispute over a large river basin in-
volving millions of dollars in water rights, land, and economic activities, it
would not be unreasonable to spend many hours and hundreds of thousands of
dollars on a process designed to resolve the conflict. However, these same
expenditures would be “unreasonable” for a two- or three-party dispute in-
volving neighboring farmers.

Only costs incurred as part of the process are reviewed here. Costs and
cost-sharing agreements related to the Outcome and its implementation are
discussed under Cost-Effective Implementation.

Costs are broadly defined to include monetary expenditures, staff time,
and other resources dedicated to the process. The process to be analyzed is the
one that led to the Outcome that is the subject of the research - e.g., the proc-
ess of negotiating an agreement, of drafting and enacting legislation, of litigat-
ing or of promulgating an administrative rule.

Across the cases, comments on the costs of litigation were more common
than comments on the costs of the other processes. Actual cost data for some
parties, or perceptions about the cost, were noted for litigation associated with
the Big Horn, Edwards Aquifer, Pecos River and Pyramid Lake cases.

Costs to state governments were noted more commonly than costs to any
other type of party, perhaps because states must answer more thoroughly to
their constituents for money they spend in attempts to resolve conflicts than is
expected of federal agencies.

While the data obtained about actual process costs was quite sketchy, the
litigation cases seemed to be perceived as excessively costly in comparison to
perceptions expressed about administrative, legislative and negotiated proc-

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esses. Due to lack of comparable data across cases, comparisons are not pro-
vided across cases for Process Costs.

III. OUTCOME QUALITY

This category reviews criteria that examine the quality of the Outcome
provided by the conflict resolution process.

A. Cost Effective Implementation

This criterion focuses on the costs of implementing the terms of the Out-
come. It collects information that may be used comparatively to assess
whether an agreement/ruling took a cost-effective approach to resolving the
technical problems of the conflict and to implementing the terms of the agree-
ment. Implementation is considered cost effective if the actions were under-
taken in a manner that considered and minimized the costs of accomplishing
what was required. For instance, water market transactions are generally a
more cost-effective approach to obtaining the water needed to implement an
outcome, compared to constructing new water storage facilities.

The two Outcomes that involved administrative rules (Lower Colorado
River and Mono Lake) both had information specifically noted about the costs
to taxpayers and ratepayers. Perhaps administrative processes consider costs
to taxpayers and ratepayers more carefully than other Outcomes, such as liti-
gation. Or perhaps these effects are simply documented better in these cases.
The Lower Colorado River case specifically noted that the cost effective man-
agement of water was a goal of the administrative rules. In both of these
cases, voluntary water purchases and exchanges were considered an important
part of implementation.

The two cases that involved negotiated agreements ratified by Congress
(Pyramid Lake and Salt River) contained more detail about the costs to stake-
holders than other cases. Perhaps stakeholder costs receive more considera-
tion in negotiations that are ratified by Congress than in other types of proc-
esses. Impacts on water rates in some of the affected water districts were also
noted for both of these cases.

The cost information for stakeholders, the public and others could not be
considered complete in any of the eight cases. The reported cost information
included comments on perceived costliness by parties and observers, expecta-
tions of future costs for implementation and (rarely) actual data on costs in-
curred. Both of these cases rely upon negotiated water exchanges and acquisi-
tions to provide water for tribal and environmental needs as a part of imple-
menting the agreements.

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The courts did not explicitly consider costs in the two litigation cases.
However, the affected parties took steps to cost-effectively comply with the
ruling. In Pecos River, the state of New Mexico has complied by purchasing
and leasing water from irrigators. In the Big Horn case, the irrigators negoti-
ated a short-term lease of water from the tribes in order to avert disruption of
irrigation water supplies.

A cross-case comparison is hindered by the lack of comparable data, so
ratings should be viewed as tentative. Ratings are based on noted perceptions
of costliness and on the use of water transfers and exchanges, rather than new
construction, to procure water. Mono Lake, Edwards Aquifer, Salt River,
Pyramid Lake, Lower Colorado River, and Snowmass Creek are all ranked B
(medium-high). The two litigation cases are ranked C (medium), due to the
absence of cost considerations by the courts.

B. Perceived Economic Efficiency

This criterion assesses perceptions of stakeholders and observers on the
balance of costs and benefits of the Outcome, i.e. “was it worthwhile?” At the
time of the original case analyses, we had not yet recognized the need to sepa-
rate out Perceived Economic Efficiency from other economic outcome criteria
though this is now done in the Guidebook (Appendix A). Thus data was not
specifically collected on this criterion, and no case comparisons are made
here.

C. Financial Feasibility/Sustainability

This criterion assesses how the agreement addresses issues of securing
funding for implementation and ensuring that economic incentives encourage
compliance and support implementation. While the first criterion in this cate-
gory, Cost-Effective Implementation, addresses costliness of implementation,
this criterion focuses on how the money will be obtained, such as actual or
planned financial arrangements. Financial arrangements specify who pays for
what, the monthly or annual obligations, and the time period over which pay-
ments are made. Researchers were asked to distinguish financial considera-
tions related to the Outcome from those that would have occurred regardless
of the Outcome, and to record those that are attributable to the Outcome . 2

Researchers were asked to summarize information on the allocation of
costs among parties (staff time, money, water, other costs); parties’ ability to
pay; the spreading costs over time; any large deferred costs; water pricing to
promote conservation; other economic incentives to support implementation;
loans and cost sharing arrangements; and unfunded mandates, such as requir-
ing monitoring without providing funding.

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217

Cost allocations among parties were noted in the case studies for cases in-
volving legislation, administrative rules and negotiated agreements. The two
litigation cases (Big Horn and Pecos River) did not specify cost allocations.
Several of the non-litigation cases (Edwards Aquifer, Mono Lake, Pyramid
Lake, Salt River) also explicitly provided for loans to specific parties to assist
them in paying for costs they had incurred (or expected to incur) and provided
specific mechanisms to raise funds to cover costs. These mechanisms include
increased water rates, water use fees, the issuing of bonds by public entities
and contributions from the federal budget.

Water leases and water acquisitions were authorized in several cases to
make more efficient use of regional water sources (Edwards Aquifer, Mono
Lake, Pyramid Lake, Pecos River and Salt River). The authorizations for wa-
ter transactions were provided through legislation, administrative rule making
and provisions in negotiated agreements.

Several cases specifically prohibited or limited unfunded mandates. The
Edwards Aquifer legislation specifies that there shall be no taxpayer subsidy
to implement the legislation. The Lower Colorado River administrative rules
specify that unfunded mandates imposed on non-federal and private parties
shall not exceed $100 million per year.

Issues about the ability to pay were noted in several cases. In the Edwards
Aquifer legislation, agricultural water users are guaranteed lower water use
fees than cities, because agriculture has less ability to pay for water. The Cali-
fornia Water Board noted (in the Mono Lake case) that the costs to the City of
Los Angeles to replace water and hydropower no longer available due to the
Board’s decision, were reasonable given the assistance provided to the City
from federal and state sources and considering the water costs elsewhere in
Southern California. The Snowmass Creek case study noted that public enti-
ties could cover their increased costs through fee collection mechanisms.

The Edwards Aquifer and Pyramid Lake case studies mentioned water
pricing as a tool to encourage more efficient water use.

Overall, based on information provided in the case studies, it appeal's that
litigation does not address financial and economic issues in as much depth as
legislation, administrative rules and negotiated agreements. Lurther research
that compares the thoroughness of different Outcomes and the ramifications
of various levels of attention to financial and economic matters would be use-
ful.

Comparing across cases, the Mono Lake, Pyramid Lake, Salt River, and
Snowmass Creek cases rank ‘B’ (medium-high) on financial sustainability,
given their attention to cost-sharing and financial mechanisms. Edwards Aq-
uifer and Lower Colorado River are given ‘A’ (high) rankings due to their
emphasis on no taxpayer subsidy (Edwards Aquifer) and limits on unfunded
mandates (Lower Colorado River). The Pecos River case is ranked ‘B’ to ac-
knowledge the state of New Mexico’s use of bonds to raise funds to comply

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with the court ruling. The Big Horn case is ranked ‘E’ because it shows evi-
dence of little consideration of financial matters.

D. Cultural Sustainability/Community Self-Determination

This criterion asks for a record of the communities affected by the agree-
ment/ruling and an assessment of the types of potential effects. These include
demographic and economic effects, such as changes in patterns of jobs, in-
come, and taxes. They also include changes in patterns of ownership, deci-
sion-making authority or jurisdiction and in the social and cultural “lifeways”
of the impacted communities or in the relative balance of these lifeways (the
“cultural mix”).

Cultural impacts are most prominently considered in the cases in which
one of the stakeholders is a Native American tribe. Tribal concerns over cul-
tural resources were noted in the Mono Lake and Pyramid Lake cases. Deci-
sion-makers attempted to address these concerns in the ensuing agreements
and administrative rules. Lederal laws intended to protect cultural resources
played a role in both of these cases.

Another type of tribal concern was noted in the Pyramid Lake, Big Horn
and Salt River cases. This concern was over tribal government jurisdiction
and sovereignty to govern the resources of the tribal reservation. The negoti-
ated agreements in the Pyramid Lake and Salt River cases attempt to address
tribes’ concerns about protecting their sovereignty. The series of court rulings
in the Big Horn case resulted in inconsistent decisions regarding the jurisdic-
tion of the tribal government to manage irrigation diversions by non-Indians
whose lands are located within the reservation boundaries.

Every case raised concerns about impacts on ways of life. In addition to
concerns about tribal culture, many cases raised issues about reduced water
for irrigation and impacts on agricultural communities and life-ways. The Big
Horn, Edwards Aquifer, Mono Lake, and Pyramid Lake cases all note con-
cerns expressed by agricultural interests that their way of life would decline as
water was transferred away from agriculture to satisfy environmental needs.
In Outcomes that involved legislation and negotiated agreements, water was
not involuntarily taken from one group for use by another. Instead, voluntary
transactions were the mechanism used. In the Pecos River case, the state of
New Mexico specifically chose to buffer New Mexico irrigators from the
court decision by purchasing water from them with state funds, in order to
comply with the court ruling. Alternatively, the state could have chosen to
require farmers to cut back water use in order to provide court-mandated wa-
ter deliveries to Texas. In these legislated and negotiated cases, the voluntary
nature of the water transfer arrangements did not ameliorate the concerns of
irrigators.

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219

Several cases involved tradeoffs between water for urban areas and water
for agricultural use. The Edwards Aquifer, Lower Colorado River, Mono
Lake, Pyramid Lake and Salt River cases all involve competition between
agricultural and urban users for limited regional water supplies. In these cases,
water would move from irrigation use to urban use only when a farmer agreed
to sell or lease their water. Again, the voluntary nature of these transitions did
not erase concerns about potential impacts on farming and farm communities.

The Snowmass Creek case presents a different type of tradeoff between
lifeways. It involves tradeoffs between water for snowmaking to sustain the
ski industry, a key employer in the area, and water to maintain ecologically
healthy streams and fisheries.

Overall, this criterion does not highlight distinctions among the different
types of Outcomes so much as it emphasizes that tradeoffs among communi-
ties and ways of life lie at the heart of water conflicts.

In comparing across cases, higher rankings are given to those Outcomes
that addressed cultural concerns and concerns about community and way-of-
life viability. It must be noted that a strong ranking here may run counter to
other criteria. Lor instance, the protection of agricultural water users generally
entails subsidies or restrictions on buying water from farmers, which reduces
cost-effectiveness. The Big Horn, Pyramid Lake, Mono Lake, and Salt River
cases all explicitly address tribal cultural and sovereignty concerns. They are
ranked ‘B’ (medium-high), except Pyramid Lake, which is ranked ‘D’ due to
the negotiated agreement’s failure to accommodate agricultural communities’
concerns. In Edwards Aquifer and Pecos River, agricultural water access is
diminishing through voluntary transactions. These cases are rated ‘C,’ along
with Lower Colorado River and Snowmass Creek - where the Outcomes af-
fect local economies and ways of life in a manner acceptable to the stake-
holders.

E. Environmental Sustainability

Sustainability has been defined in many different ways. In our work, we
use “environmental Sustainability” to refer to practices that manage current
resources in such a way that future generations will have comparable re-
sources available to them. This criterion assesses the degree to which the Out-
come considers drought, environmental factors and other natural contingen-
cies, either through direct language in the agreement/ruling or through partici-
pation of environmental advocates (agencies and organizations) in crafting the
Outcome and its implementation. The criterion also asks what natural re-
sources are committed for implementation, over what time frame, and with
what environmental impacts. Linally, this criterion looks for provisions in the
Outcome that protect or restore endangered species, water quality and other

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aspects of environmental quality, and for participation by environmental ad-
vocates.

Environmental protection or restoration was one of the key issues motivat-
ing the conflict in five of the eight case studies: Big Horn, Edwards Aquifer,
Mono Lake, Snowmass Creek and Pyramid Lake. Environmental considera-
tions also are important in the Salt River and Lower Colorado River cases
because they affect the options available to the parties to resolve their inter-
jurisdictional water disputes. Environmental concerns did not appeal' to be
prominent in the Pecos River case, possibly because it provides higher flows
than had been customary in the river at the New Mexico-Texas border. How-
ever, there is an endangered fish species in this section of the Pecos River and
environmental advocates are urging changes in river management to protect
the fish, in addition to the changes that comply with the Pecos River case
court ruling.

Considering the eight cases, the prominence of litigation based on envi-
ronmental laws is quite evident. At various stages of the dispute, all the cases
except Pecos River and Salt River were influenced by litigation over endan-
gered species, water quality or some other environmental consideration. Such
litigation appeal's to be an important force, providing momentum for the par-
ties to achieve resolution either through the courts or through legislation, ne-
gotiation and administrative rules.

All of the cases, without exception, involved regional water supplies that
were inadequate to satisfy all demands. The two litigation Outcomes, Big
Horn and Pecos River, divided water supplies between the competing jurisdic-
tions and those allocations need to be honored during drought years.

Drought was a concern in many of the other cases as well. In the Edwards
Aquifer case, minimum spring flows need to be provided even during drought
years and water users will need to adjust their own uses to accomplish this.
Cities are acquiring water from irrigators to ensure they can satisfy urban wa-
ter needs during drought. The Mono Lake case ties water use restrictions to
lake -levels to protect the lake even during dry years. The city of Los Angeles
is acquiring other supplies to ensure it can meet its needs during drought. The
Snowmass Creek agreement specifies actions to be taken during normal, wet
and dry years to protect stream flows.

In the Salt River case, environmental sustainability was promoted by
switching water users from local groundwater (which is being depleted) to
imported renewable surface water supplies. However, the imported water re-
quires a large amount of electric power to transport it to central Arizona, rais-
ing other environmental concerns, such as the impact of power generation on
air quality. During drought, groundwater reserves act as a back-up water sup-
ply.

All the cases commit water resources to the implementation of the agree-
ment and consider the environmental effects of changes in water allocation

Patterns in Environmental Conflict Resolution

221

and management. The Salt River case commits electric power to move surface
water supplies into the center of the state so groundwater pumping can be re-
duced.

Environmental advocates and tribes, representing specific environmental
concerns, participated in varying degrees to influence the Outcomes of the
cases. They were prominent in either initiating litigation or participating in
negotiations in the Mono Lake, Pyramid Lake, Big Horn, Edwards Aquifer,
Salt River, and Snowmass Creek cases.

All of the cases in which environmental concerns and/or drought were
central issues gave considerable attention to these concerns. The complexity
of this criterion suggests that cases be compared against one another on sev-
eral subcomponents of the Environmental Sustainability criterion. With re-
spect to provisions in the Outcome that protect endangered species, water
quality and other aspects of the environment. Pyramid Lake, Mono Lake, and
Snowmass Creek rate ‘B’ (medium-high). Big Horn ranks lowest, due to the
lack of protection for stream flows in the final court ruling. The other four
cases are difficult to distinguish from one another based on this criterion and
are ranked at ‘C’ (medium). The Mono Lake, Snowmass Creek, and Edwards
Aquifer cases give the most explicit attention to drought considerations and
are rated ‘A’. The Pyramid Lake, Pecos River, Lower Colorado River, and
Salt River cases also provide for dry-year adjustment and supply assurances.
They are rated ‘B\ followed by Big Horn as ‘D’ (medium-low).

F. Clarity of Outcome

This criterion assesses whether the agreement was clearly worded and
specified performance standards. It looks for the presence of any misunder-
standings and differences in interpretation and examines Outcome language
for ambiguity. It also checks the Outcome and implementation for well-
defined baselines and performance standards (e.g., water use, stream levels,
and conservation efforts).

Nearly all the cases contain subsequent controversies and negotiations that
suggest the Outcome may not have been entirely clear. However, it is not al-
ways possible to discern whether subsequent disagreements were rooted in an
ambiguity in the Outcome or in a party’s dissatisfaction with the terms of the
Outcome. Both factors may contribute to the need for further negotiations or
litigation. This appears to be true in the Edwards Aquifer case study. Agricul-
tural interests were clearly unhappy with the 1993 legislation and there were
disagreements and several lawsuits over its implementation. The Mono Lake
case required subsequent rounds of negotiations to work out how to imple-
ment the administrative ruling. This suggests that the ruling did not initially
include clear implementation details. Irrigators in the Pyramid Lake case spe-

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cifically criticized the agreement for creating uncertainty for them regarding
their access to water.

Baseline conditions and performance standards were explicitly discussed
in many of the cases. The legislation in the Edwards Aquifer case set clear
goals for groundwater management and standards for assigning pumping
rights. The Mono Lake ruling set explicit standards for maintaining lake-
levels, as the negotiated agreement in the Snowmass Creek case did for main-
taining stream flows. The courts set standards for river flows in the Pyramid
Lake case, which had to be honored in the negotiated agreement, which, in
turn, also set standards for providing flows to maintain and restore wetlands.
The Pecos River ruling set performance standards for river flows from New
Mexico into Texas.

With respect to well-defined baselines and specific performance standards.
Pyramid Lake, Mono Lake, Edwards Aquifer, and Snowmass Creek rate me-
dium-high (B) for more explicit attention to the issues. Salt River and Pecos
River rate medium (C), and Big Horn and Lower Colorado River rate me-
dium-low (D), with less focus on performance standards and baselines.

G. Feasibility/Realism

The Feasibility /Realism criterion addresses whether the Outcome is realis-
tic in its assumptions and can be implemented in a practical sense, given legal,
political, and technical considerations. Does it consider the legal and political
context? Are the scientific and technical assumptions valid? Researchers were
not asked to make legal, political, or scientific assessments themselves, but
rather to note discussions of such types of feasibility in media and other
sources. They looked for public perceptions regarding the political acceptabil-
ity of the agreement, passage of necessary legislation (political feasibility),
the consistency of the Outcome with existing law (legal feasibility), or
whether the monitoring/ implementation team was “representative of key in-
terests” (politically realistic). Researchers also looked for discussions about
unrealistic commitments and assumptions related to: implementation, finan-
cial aid, resource supplies, technology, science, the behavior of other parties,
and whether the agreement could be justified to parties’ constituencies.

Political feasibility applies most clearly to negotiated agreements since
courts and agencies do not require political support to issue a ruling and the
passage of legislation is itself evidence of political feasibility for legislative
Outcomes. However, political support was shown in the Mono Lake ruling
through state legislation that helped fund implementation. In the Edwards Aq-
uifer case, the Texas legislature needed to pass amendments to the 1993 legis-
lation, and by doing so, indicated continuing political feasibility of the Out-

come.

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223

The Edwards Aquifer, Salt River, Pyramid Lake, Snowmass Creek, and
Mono Lake cases rate highest (B) in political feasibility, due to state or fed-
eral legislative support. Lower Colorado River and Pecos River rank medium
(C), with implementation supported by legislative actions, while Big Horn is
rated low (E).

Legal feasibility was strong in those cases with prior litigation and legal
requirements that the Outcome needed to satisfy. The litigation cases (Big
Horn and Pecos) are ranked ‘A’. The Edwards Aquifer, Lower Colorado
River, Mono Lake, Pyramid Lake and Salt River cases all had to consider
prior court rulings in crafting the legislative, negotiated and administrative
Outcomes. In the Edwards Aquifer and Pyramid Lake cases, dissatisfied par-
ties challenged the legal validity of the Outcome. These two cases are ranked
‘C’and the others are ranked ‘B\

IV. RELATIONSHIP OF PARTIES TO OUTCOME

Criteria in this category focus on how parties react and relate to the Out-
come of the conflict resolution process, as well as how the Outcome provides
structure to the future relationship between the parties.

A. Satisfaction/Fairness - As Assessed by Parties

As noted earlier, research 3 has found that Outcome satisfaction and Out-
come fairness are highly related in peoples’ minds, so they have been com-
bined in our framework and analysis. Satisfaction/Fairness attempts to assess
parties’ perceptions of satisfaction with and fairness of the Outcome immedi-
ately upon its completion, either expressed overtly or through behavior like a
refusal to sign or endorse.

Researchers were warned to check across various stakeholders, as this re-
quires the use of multiple sources. It is important to distinguish between ex-
pressions of satisfaction with an Outcome (noted here) and expressions of
satisfaction with its subsequent implementation (the latter is discussed under
criterion IV.D, Stability/Durability).

In reviewing parties’ satisfaction with conflict resolution Outcomes, the
glass can be either half empty or half full. There were few cases in which
every party was satisfied. These included the Salt River and Snowmass Creek
cases, although in the former case individual fanners were dissatisfied, and in
the latter case the satisfaction was “guarded” until modifications were negoti-
ated. By comparison, only one of the cases in our sample revealed no level of
satisfaction (Big Horn). Satisfaction was almost always partial or guarded, or,
as in Edwards Aquifer, there was satisfaction that all were “suffering”
equally.

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Sometimes satisfaction by most parties was bought at the expense of one
party’s dissatisfaction, typically that of the agricultural interests (Pyramid
Lake, Edwards Aquifer, a few in Salt River). In the litigation cases reviewed,
either one party was satisfied and the other was not (Pecos River), or none of
the parties were satisfied (Big Horn). In other processes, satisfaction was
mixed.

Since most parties in both Salt River and Snowmass Creek were satisfied,
these merit a ‘B’. In several of the cases rated ‘C’ (Lower Colorado River,
Mono Lake, Pecos River, and Pyramid Lake), lingering dissatisfactions still
did not prevent achieving an Outcome accepted by most. By contrast, all par-
ties were dissatisfied with the Big Horn ruling; we rate this an ‘E’. In the Ed-
wards Aquifer case, there was some satisfaction that suffering was equally
borne, though protests continue to hamper implementation, meriting this case
a ‘D’.

B. Compliance with Outcome Over Time

Agreements, rulings, and other Outcomes compel parties to engage in cer-
tain behaviors and refrain from others. Compliance with Outcome over Time
assesses whether parties did act in accordance with the requirements of the
Outcome. This includes dissenting parties who may have not signed an
agreement (or who opposed legislation or a ruling) but may still be bound by
it. Indicators of compliance include any subsequent litigation, initiated or
threatened, in order to bring a party into compliance; renewed mediation or
negotiations due to perceived noncompliance; records of compliance kept by
any monitoring entity; and the inclusion of any provisions in the Outcome for
verifying compliance (procedures, mechanisms, or entities).

The researcher was not asked to independently assess compliance, but
rather to note the presence of the compliance indicators listed above.

We did not include indicators that asked for ways parties were encouraged
to do, or not do, certain things, therefore we only have a few comments on
general compliance behavior (more information on incentives can be found
under IV.D, Stability/Durability). In the Edwards Aquifer case, the EAA
found it difficult to comply with groundwater pumping limits, so they tried an
alternative strategy of paying farmers to refrain from irrigation. In the Pecos
River case, New Mexico leased or bought additional water rights to increase
flows into Texas and achieve compliance. Overspending and other irregulari-
ties in the New Mexico water rights purchase program were uncovered
through an audit requested by the New Mexico State Engineer. The Pyramid
Lake case briefly mentions that the Settlement Act included actions and in-
centives.

Subsequent litigation to bring parties into compliance was threatened in
the Big Horn, Edwards Aquifer, and Lower Colorado River cases. (Subse-

Patterns in Environmental Conflict Resolution

225

quent litigation was initiated for other motivations in Pyramid Lake and Salt
River). Subsequent mediation was attempted only in the Pyramid Lake case.

Most cases did not have records of compliance by a monitoring entity. It
appeared that it was often either too early for these to have been kept, or the
researcher simply could not find any in existence. In the Mono Lake case,
lake level records were available from the DWP. Monitoring records were
located in the Pyramid Lake case, but solicited records were for the most part
not received. One large record arrived too late to be analyzed. The lack of
availability of monitoring records may suggest that few records of compliance
are actually maintained.

The Outcomes of administrative rulings and negotiations (Lower Colorado
River, Mono Lake, Pyramid Lake, Salt River) included provisions for verify-
ing compliance, but these were not discussed in court rulings (Big Horn, Pe-
cos River) or legislation (Edwards Aquifer, Snowmass Creek). However, the
Snowmass Creek case did include procedures for modification. Provisions for
verifying compliance came in a variety of forms. The Lower Colorado River
case required reports to the Secretary of Interior on records of quantities and
credits that were stored and redeemed [Secretary also reports on diversions
and consumptive uses]. There were also reports to congressional committees
(Pyramid Lake), reports to the State Water Resources Control Board (Mono
Lake) on plans for stream and waterfowl restoration, reports on water use
(Pyramid Lake), reports on stored and developed water (Salt River), and re-
ports on instream flows and lake levels (Mono Lake). Pyramid Lake’s Settle-
ment Act established a framework of actions, schedules, incentives, and coor-
dinating bodies.

One can speculate on why provisions for monitoring compliance seem to
be commonly omitted from legislation and court rulings. Perhaps legislation is
intentionally vague to allow for easier passage, leaving compliance provisions
for the administration stage. Court rulings seem to assume compliance, with
any noncompliance handled through later court proceedings.

The ruling in the Pecos River case required follow up actions. The New
Mexico legislature passed legislation to help implement the requirements im-
posed on the state by the court ruling.

In the Edwards Aquifer and Pyramid Lake cases, city governments adopt-
ed new water management policies to comply with state or federal legislation.

Arizona passed legislation to create a state water bank, consistent with a
provision in the federal rules issued in the Lower Colorado River case. In the
Mono Lake case, required follow-up activities were undertaken by various
governments, such as the City of Los Angeles. Ratification, per se, was not
required.

Comparatively evaluating across cases required trading off evidence of
noncompliance (e.g., subsequent litigation to bring compliance) with evidence
of structures to encourage compliance. Big Horn had such subsequent litiga-

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tion, and without clear evidence of compliance mechanisms we rate it a ‘D’.
Cases earning ‘C’s included Edwards Aquifer, which had subsequent litiga-
tion threatened but also had some minimal mechanisms for encouraging com-
pliance, Snowmass Creek, which had no subsequent litigation but also only
minimal compliance frameworks specified, and Pyramid Lake, which had
much subsequent litigation but also an extensive framework for encouraging
and measuring compliance. Other cases with more extensive reporting, sanc-
tions, and/or incentives for compliance, and little or no subsequent litigation,
were Lower Colorado River, Pecos River, and Salt River. These were rated
‘B.’ Linally, Mono Lake had no subsequent litigation and an admirable and
extensive framework for measuring and encouraging compliance, meriting an
‘A.’

C. Flexibility

While no Outcomes can be written to anticipate all future contingencies,
they can be designed to be responsive and flexible. The criterion of Flexibility
assesses an Outcome’s ability to be adapted to changing conditions. Indicators
assess details of any subsequent modifications, the specified process for modi-
fication (if any) in the original Outcome, and any unachieved but desired
modifications, particularly if the barrier to modification was in the Outcome
itself.

Surprisingly, only half of the Outcomes had experienced subsequent modi-
fications. This could indicate that insufficient time had passed for the agree-
ment or ruling’s flexibility to have been tested. Lew discernable regularities
were observed in the pattern of modifications, other than the fact that subse-
quent modifications were made in all cases of negotiation. In the Salt River
case, a petition was filed to adopt a rule specifying procedures for settling
federal water rights, while a US congressional committee made modifications
in the Pyramid Lake case to prevent irrigators from stalling implementation
and to reduce funds allotted to the tribe. The proposed Rules in the Little
Colorado River case underwent a period of lengthy feedback and further ne-
gotiations when revisions were made. In the Edwards Aquifer case, litigation
prompted a change of an appointed board to an elected board.

Were procedures for modification anticipated in the terms of the original
Outcome? Almost across the board, all Outcomes either specified a process
for modification ( Edwards Aquifer, Lower Colorado River, Pecos River,
Snowmass) or empowered a certain body to make modifications if necessary
(SWCRB in Mono Lake, legislative committee in Pyramid Lake, an arbitrator
in Salt River). The Lower Colorado River Outcome required modifications to
be made within a certain time period. The cases that encountered barriers to
modification understandably involved modifications from one party that were
not desired by other parties (Edwards Aquifer, Salt River).

Patterns in Environmental Conflict Resolution

227

Though modification procedures were often specified, implementation
procedures were not. In many subsequent tests of the Outcome, the question
was usually not one of revising the original Outcome, but rather interpreting
the Outcome in its application. Therefore, though ‘clarity’ of agreement may
initially seem to be at odds with ‘flexibility,’ these two criteria may actually
address different aspects of the Outcome. ‘Clarity’ may address whether or
not things are “spelled out” to make implementation more straightforward,
while ‘flexibility’ may primarily provide processes for subsequent adjust-
ments and modifications. It may be possible to have an outcome that is both
‘clear’ in the sense of tacking down implementation details, while still ‘flexi-
ble’ by including a process for modification if needed.

Because no significant differences exist across types of Outcomes for this
criterion, no formal comparison across cases is warranted.

D. Stability/Durability

Stability/Durability addresses the ability of the Outcome to persist over
time. It includes two types of indicators: those that look at characteristics in
the Outcome itself and in any accompanying framework for implementation
that may affect stability over time; and indicators that actually note evidence
of stability or instability over time. Indicators in the first category include sta-
bility-promoting incentives in the Outcome, such as penalties, deadlines, or
benchmarks, identification of a party (or parties) as responsible for implemen-
tation, and provision of an ongoing forum for future conflict resolution. Indi-
cators in the second category, which note actual instability, include non-
compliance, resumed litigation or introduction of counteracting legislation,
expressions of hostility, communication breakdown, and coercive behavior.

The first indicators are what we often think of as relevant to implementa-
tion (incentives, benchmarks, and responsible parties). Positive or negative
incentives such as penalties, deadlines, or benchmarks were included in all
cases of legislation and negotiation. Incentives were not uncovered in either
case of court ruling. One administrative ruling case (Mono Lake) included
benchmarks and other incentives, while this was not addressed in the other
similar case (Lower Colorado River). One can speculate on why incentives
are lacking in court rulings, though they are present in other processes. Per-
haps processes such as negotiation, legislation, and rulemaking are more con-
scious that parties participate in such agreements and then implementation
through their own volition, and attempt to support this, while court rulings
assume parties have incentives to comply due to the implied potential sanc-
tions of the court.

The types of incentives included penalties (for unauthorized pumping in
Edwards Aquifer; for wasted water in Salt River); deadlines (for reducing
withdrawals in Edwards Aquifer; for requests, temporary storage, and permits

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Chapter Eight

in Salt River; time frames in public law in Pyramid Lake); benchmarks (for
lake water levels in Mono Lake; water quality standards in Pyramid Lake;
monthly reports in Salt River; Interior has goals, agencies have action plans in
Pyramid Lake; detailed contingencies in Snowmass Creek); and rewards (ad-
ditional water can be diverted in Mono Lake). Given the learning literature on
the best way for shaping behavior, more emphasis on positive incentives, i.e.,
rewards, should be explored.

Nearly all the Outcomes identified the parties responsible for implementa-
tion. The party responsible for implementation and/or monitoring typically
was a public agency: the Department of the Interior (Big Horn, Pyramid
Lake), the EAA in Edwards Aquifer, and the DWP and SWRCB in Mono
Lake. One notable exception was in Snowmass Creek, where the siding com-
pany was designated as the monitoring party (for stream flows).

Several of the Outcomes establish or imply that forums used to reach the
Outcome should also be used for future conflict resolution (EAA, legislature
in Edwards Aquifer; original negotiation forum in Lower Colorado River;
SWCRB in Mono Lake; TCCO in Pyramid Lake). This is not addressed in the
two court rulings, probably because it is assumed that future disputes would
return to the court.

Indicators of actual (as opposed to predictive) instability typically noted
were: continued litigation, hostility, threats, lack of trust, and communication
breakdowns (Snowmass Creek, Pyramid Lake, Edwards Aquifer, Lower
Colorado River). Many of the indicators of actual instability are also things
we noted in other parts of the analysis: in Compliance, and in section V, Rela-
tionship between the Parties (which discusses ongoing conflict resolution,
subsequent litigation, noncompliance, hostility, and coercion).

In comparing across cases, many of the cases exhibited components en-
couraging stability, such as incentives, future conflict resolution forums, and
parties responsible for implementation. Edwards Aquifer, Pyramid Lake and
Salt River had all of these, earning a ‘B’. Mono Lake earned an ‘A’ because
its incentives also included the underutilized category of rewards. Lower
Colorado River and Snowmass Creek had only some of these stability-
promoting mechanisms, meriting a ‘C\ The two court ruling cases. Big Horn
and Pecos River, had little or no stability-promoting incentives, and no ongo-
ing forum for future conflict resolution other than the implied course of re-
turning to court, rating a ‘D’.

V. RELATIONSHIP BETWEEN PARTIES

This category includes criteria that evaluate the relationship between the
parties in the context of the conflict and of the Outcome that was produced
through the associated conflict resolution process.

Patterns in Environmental Conflict Resolution

A. Reduction in Conflict and Hostility

229

A common measure of improvement in conflictual relationships is a reduc-
tion in hostility. This criterion captures a sense of whether the conflict is de-
escalating or not, either in actions, rhetoric or tone of communication. Various
factors from the literature on conflict escalation, such as the presence or ab-
sence of various possibilities for non-alignment (which indicates level of po-
larization), also are included as indicators . 4

At first it may seem odd to look for a connection or pattern between the
conflict resolution process and whether or not the conflict is escalating. It
see ms that this criterion would be better predicted by the “stage” of the con-
flict on the timeline of the resolution process, rather than the type of process
used. But since all of the cases were reviewed within the first ten years of the
Outcome, their ‘stages’ were all similar and in a sense ‘constant.’ Interest-
ingly, one can observe at least a loose association between escalating conflicts
and either litigation or legislation having been the dominant process analyzed
(Big Horn, Edwards Aquifer, and Snowmass Creek). Cases with other proc-
esses either showed no clear rise or fall, or were clearly deescalating. Was this
a chicken-or-egg kind of association, in that when conflicts were escalating,
litigation or legislation was brought in? This is possible. However, for those
cases in which the Outcome was a product of legislation or litigation, the pe-
riod subsequent to the Outcome was marked by escalating hostilities.

Hostilities could take the form of rhetoric, threats, or actions. Hostile
rhetoric and climate included the use of in-group sanctioning against members
of one’s own group that might interact (verbally or economically) across ‘con-
flict lines.’ This produced a sense of fear among some parties (Edwards Aqui-
fer). Threats were sometimes issued before the Outcome (issued by state of
Nevada in Lower Colorado River), or subsequent to it (issued by utility in
Snowmass Creek). An interesting question to explore would be, which parties
resort to threats? Is it parties with “power” or those that feel “powerless,” or is
it powerful parties that feel their power slipping away? Some examples of
hostile actions included cutting off water (Big Horn), seeking a temporary
restraining order (Edwards Aquifer) and, of course, resuming litigation.

In both cases where the conflict was perceived to be deescalating (Lower
Colorado River, Salt River), it was often sensed through changes in tone
(more conciliatory in the Lower Colorado River case; friendly, mutually ap-
proving in the Salt River case) and the presence of positive themes in com-
munication, such as openness or cooperation (Lower Colorado River). Ac-
tions included suggesting various creative solutions, initiating joint projects
(e.g., in Salt River on repatriating Indian artifacts and remains).

In both cases where the conflict was perceived to be neither escalating nor
deescalating, the relationship between the parties was called “professional”
(Mono Lake, Pyramid Lake). This designation is re mi niscent of the euphe-

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Chapter Eight

misms used by diplomats and press secretaries to report to the press on peace
talks.

Information on polarization was not often included, unless it was to note
that it was absent (Salt River). However, the ingroup sanctioning in the Ed-
wards Aquifer case noted above, as well as the fact that its associated ongoing
citizens committee was internally divided, suggests polarization and thus a
heightened state of escalation.

In cross-case comparisons, cases with de-escalation (Lower Colorado
River, Salt River) were rated ‘A’, while those perceived to be neither escalat-
ing nor de-escalating were rated ‘B’. Cases where conflict was escalating
were rated lower on this criterion, with Snowmass Creek earning a ‘C’, and
Big Horn and Edwards Aquifer earning a ‘D’ for hostile actions and threats.

B. Improved Relations

Theorists have sought to conceptualize “peace” or “good relations” as
something beyond a lack of hostilities . 5 What represents “good relations” in
terms of the presence, rather than the absence, of something? This criterion
seeks to capture changes in the way parties see and relate to one another that
may reflect the essence of successful resolution. To note change, one also
must first note the nature of the original relationship as a baseline for com-
parison. Indicators to explore for change include discussions of the relation-
ship itself, as well as the tone of communication among the parties (hostile,
conciliatory), the effort parties expended to protect themselves, and their
sense of trust as indicated by the need for lack of enforcement clauses or other
formalities.

The reviewed cases seemed to fall into roughly three general categories on
these criteria: Negative relations (no improvement, as in the Big Horn,
Snowmass Creek, and Edwards Aquifer cases) are rated ‘E’. Fragile but in-
creasingly positive relations, which are reinforced through the presence of
some authority or framework (Lower Colorado River, Mono Lake), are rated
‘C\ Clearly positive relations where little authority or framework is needed
(Salt River, Pyramid Lake) are rated ‘A’. As in the previous criterion, the pat-
tern of improvement in relations again corresponds roughly with the type of
conflict resolution process used. The first category again includes litigation or
legislation (though Snowmass Creek was also negotiation), the second cate-
gory involves cases of administrative action, and the last category contains
cases focused on negotiated agreements. This begins to lend credence to the
common wisdom (and theory in legal anthropology ) 6 that negotiation proc-
esses are the best processes for improving relations among conflicted parties.
Further research is needed to confirm this trend.

One indicator cited for improved relations was ‘cooperative relations’
(noted in the Lower Colorado River, Salt River and Mono Lake cases). In two

Patterns in Environmental Conflict Resolution

231

cases, a norm of cooperation resulted in labeling those being non-cooperative
as deviant (Lower Colorado River, Pyramid Lake). Negative relations were
indicated by the parties’ negative portrayal of each other (Snowmass Creek).

Though not asked for in the indicators we included, an often cited indica-
tor of relationship quality (and particularly of trust) was whether the parties
managed their relationship themselves or whether they relied on a third party.
In the Big Horn case, parties primarily managed their relationship through the
court. In the Little Colorado River case, parties had an authoritative third
party in the form of the River Master. Similarly, parties in the Mono Lake
case, though being supportive of the process and feeling a sense of fragile
trust, felt reassured by the third party oversight provided through the legal
process. Cases where relationship was now one of cooperation and respect
made no mention of a need for a third party. To clarify, it does not seem that
the third party is what produces the reduced relationship; rather it is the tense
or fragile relationship that requires an outside ‘manager’ because the skills,
mechanisms for cooperation, and trust are not yet internal to the relationship.

This can be seen as linked to but different from whether or not parties felt
they had a ‘working relationship.’ In certain cases, the parties may not have
felt trust and yet still noted a working relationship or a theme of cooperation.
This was true in the cases of Mono Lake and Little Colorado River, and even
in the Edwards Aquifer case. The presence of a ‘working relationship’ even
before trust exists echoes discussions in the conflict resolution literature about
how conflicting parties develop ‘a working trust .’ 7

In cases where relations had clearly improved, parties were quick to note
changes in their sense of the personal competence of the other (Salt River)
and their increased respect for the other (Pyramid Lake). Increased trust was
shown, for example, in the switch from quarterly to annual budgets and the
dispensing of other formalities (waivers of claims) (Salt River). Some would
argue that improvements such as increased respect can only come through a
conflict resolution process where the parties are able to learn about each other
as individuals , 8 and where the process is one of them sharing information with
each other and ‘practicing’ their relationship . 9

C. Cognitive and Affective Shift

This criterion is designed to provide evidence of the phenomenon that
many practitioners (and even parties) note of a shift in parties’ framing of the
conflict and/or the relationship. Indicators included noting the ways parties
referred to one another and the way they describe or explain the other parties’
behavior (pre- and post-agreement). Building on literature from family sys-
tems theories, it also included a bit of narrative analysis of the way “stories”
are told about the conflict - do narratives change (pre- to post-) in their de-
scription of causality, interactions, values, etc.

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Chapter Eight

Several of the cases did not provide information for this criterion (Big
Horn, Edwards Aquifer, Lower Colorado River, Pecos River, Salt River).
Perhaps this is because it was almost the last criterion, and the last page where
we had detailed indicators, and researchers were tired. Perhaps it was because
researchers could not find evidence of this criterion. (See next chapter on cri-
teria analysis for assessibility information).

Of the three cases providing information on this criterion, one case noted
no evidence of shift (Snowmass Creek) and in fact provided counterevidence
that parties had not shifted since they each still saw their own views as the
ones best for the community. No ‘penetration of the other’s perspective ’ 10 had
occurred and so this case is rated ‘E’.

In both cases where shifts were ascribed. Mono Lake and Pyramid Lake,
new attitudes were noted. In one case (Mono Lake), this included admitting of
past mistakes. Greater attempts were made to involve other parties from the
outset, and greater attention was paid to relationship building. Shifts in lan-
guage used to frame the conflict and tell its story were also observed. New
connections are seen between issues, as between environmental protection
and economic development (Pyramid Lake). Both cases also had several ex-
amples of parties or observers noting a change in public values and priorities
(in the Pyramid Lake case this included the perceived devaluing of irrigators’
lifestyle). These two cases are rated ‘B’.

D. Ability to Resolve Subsequent Disputes

This criterion addresses the degree to which the relationship between the
parties is able to handle subsequent related conflict, such as problems with
implementation of the Outcome. Indicators include evidence that problems
are handled constructively, evidence that an ongoing relationship has emerged
in which it is possible to address future concerns, and possibly the emergence
of an ongoing forum for conflict management. This considers the parties’ sub-
sequent joint “track record’’ in terms of actions rather than simply perceptions.

In both cases of legislation (Edwards Aquifer and Snowmass Creek), con-
troversy seems to have continued after the Outcome. In Snowmass Creek,
litigation has continued against the utility that was missing from negotiations,
and proposed resolution alternatives were considered to have been less than
fully considered by certain parties. In Edwards Aquifer, implementation of the
Act has continued to provoke controversy. These two cases are rated ‘D’.

By contrast, in the Lower Colorado River, Mono Lake, Pyramid Lake, and
Salt River cases, parties seem to have developed a commitment to continue
working together. In the Lower Colorado River, parties showed commitment
to continue to explore mutually beneficial solutions. In the Mono Lake case,
parties announced their intent to work together on the next phase (requiring
restoration plans), although requesting continued court jurisdiction. In the

Patterns in Environmental Conflict Resolution

233

Pyramid Lake case, parties expressed a desire to resolve remaining issues
through negotiations rather than litigation. Direct negotiations have been in-
creasingly emphasized in this case since the late 1980s. In the Salt River case,
parties agreed to forego future litigation (among parties to the Gila River ad-
judication), and clearly defined a process for future conflict management.

As noted explicitly in the Mono Lake case, these working relationships of-
ten seem to be an unintended but useful byproduct of extensive time working
together to produce the first Outcome. Lower Colorado River, Pyramid Lake
and Mono Lake were rated ‘B’. Salt River rated an ‘A’ for its parties’ public
stances to work together on future disputes.

The four cases for which information was noted on this criterion involved
administrative rulemaking, legislation, or negotiation processes. Information
on this criterion was not collected on either of our litigation cases during the
research phase of this project. If it had, it would have been useful to examine
if once again we observed a split on the performance on these relational crite-
ria, where litigation and legislation score poorly, and administrative actions
and negotiation perform well.

E. Transformation

Some argue that conflict presents an opportunity for individual and collec-
tive moral growth. 11 More specifically, this moral growth is toward a social
vision that integrates individual freedom and social conscience, and integrates
concerns over justice and rights with concerns about care and relationships. 12
This moral growth can occur if conflict resolution processes help people to
change their old ways of operating and to achieve new understanding and new
relationships through conflict. Indicators include evidence of empowerment
(i.e., the parties’ renewed sense of their own capacity to handle challenges),
evidence of recognition (i.e., empathy for and acknowledgement of others’
circumstances), 13 and evidence of other major shifts in perception (e.g., of
relationship context, of paradigm, of social and political context, of tools and
solutions.) This includes perceptions of ability to achieve results and resolve
further challenges.

No indicators had been created for this criterion when our researchers used
the first version of the Guidebook. Nonetheless, two researchers volunteered
evidence in their cases of what they considered transformation. In the Mono
Lake case, the theme emerged of a new environmental ethic in place, and new
ways of providing resources. Sources noted that a “new era of California poli-
tics” had been entered. In the Pyramid Lake case, it was identified as a “para-
digm shift” in social values and priorities. It would be interesting to follow up
to find out why the change was perceived as so dramatic in these two cases,
but yet not noted as such in other cases involving positive results, such as the

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Chapter Eight

Salt River case. These two cases are rated ‘B\ and for the others no cross-
comparisons are provided, due to inadequate data.

SUMMARY

In this chapter, we have examined each of the eight case studies with re-
spect to each criterion in our original evaluation framework. We found quite
varied degrees of contrast among the cases. For a few criteria, inadequate data
was available and so cases were not rated. For other criteria, cases did not
display much contrast and were placed in the same rating category to indicate
“no difference.” Sometimes cases fell readily into two contrast groups - high
and low. For a few criteria, finer distinctions were possible among cases and
all five rating categories were used.

In examining case ratings across categories of success, the cases involving
negotiated agreements tend to be rated more highly for the category Outcome
Reached, due to emphasis on consensus and ratification.

For the Process Quality category, the cases in which public healings were
required and publicly accessible processes were used received higher ratings
for procedural justice and for being accessible and inclusive.

Outcome Quality contains so many criteria that it is not meaningful to
compare cases across this broad category. However, it is interesting to note
that the one case resolved solely through litigation (Big Horn) ranks low on
every one of the six Outcome Quality criteria, except Legal Feasibility and
Cultural Sustainability.

Similarly, under success category IV, “Relationship of Parties to Out-
come”, the cases that involved negotiated agreements, administrative actions
and/or legislation tended to be ranked higher than the cases emphasizing liti-
gation. For category V, “Relationship between Parties”, four cases received
overall better ratings: Lower Colorado River, Mono Lake, Pyramid Lake and
Salt River. The two litigation outcomes (Big Horn and Pecos) and two cases
involving negotiations and state legislation (Edwards Aquifer and Snowmass
Creek) seem to perform less satisfactorily in terms of relationships among the
parties.

Comparisons across the eight cases highlight the strengths and drawbacks
of the various strategies for addressing environmental conflicts. While our
findings support the general notion that litigation produces less satisfying re-
sults, they also provide specific comparisons across multiple measures for this
general hypothesis. The eight case studies provide a rich and diverse body of
information useful to those concerned with resolving ongoing and future envi-
ronmental conflicts.

Note that aggregating scores or grades across criteria within cases (for a
comparative “case score”) would be inappropriate, as this assumes that all

Patterns in Environmental Conflict Resolution

235

criteria should be weighted equally and none of them are redundant or over-
lap. Once again, the only way to make an overall judgment is to consciously
choose and/or weight criteria before applying them to scores. Any redundant
criteria would add more weight to that dimension or factor. Weighting or
choosing criteria becomes an exercise of values, as discussed in Chapter 2. In
the next chapter we discuss how the criteria themselves have strengths and
weaknesses.

Table 8.1. Cross-Case Comparisons, continued

Patterns in Environmental Conflict Resolution

237

Cases |

Snowmass

Creek

IV. RELATIONSHIP OF PARTIES TO OUTCOME

| V. RELATIONSHIP BETWEEN PARTIES

Salt River

c_>

Pyramid Lake

Pecos River

Mono Lake

Lower

Colorado

River

Edwards

Aquifer

Big Horn

“1

Criteria

! G. Feasibility/Realism

I 1 . Political Feasibility

1 2. Legal Feasibility

i H. Public Acceptability

A. Satisfaction/Faimess - as Assessed
by Parties

1 B. Compliance with Outcome over Time

I C. Flexibility

| D. Stability/Durability

I A. Reduction in Conflict and Hostility

B. Improved Relations

i C. Cognitive and Affective Shifts

D. Ability to Resolve Subsequent
Disputes

E. Transformation

| VI. SOCIAL CAPITAL

| A. Enhanced Citizen Capacity

B. Increased Community Capxity

C. Social System Transformation

Legend: A: High B: Medium High C: Medium 0. Medium Low E: Low NA: Not Applicable ID: Inadequate Data/Not Collected during primary effort

238

Chapter Eight

NOTES

1 E. Allen Lind, and Tom R. Tyler, The Social Psychology of Procedural Justice (New York:

Plenum Press, 1988).

2 Stakeholder’s comments on Perceived Fairness of cost sharing are noted under IV. A (Satis-
faction/Fairness). Economic implications for viability of communities are noted under III.D

( Cultural Sustainability/Community Self-Determination).

3 E. Allen Lind, and Tom R. Tyler, The Social Psychology of Procedural Justice, 1988.

4 Jeffrey Z. Rubin, Dean G. Pruitt, and Sung Hee Kim, Social Conflict: Escalation, Stalemate,

and Settlement, 2 nd ed. (New York: Colin McGraw Hill, 1994).

5 Adam Curie, Making Peace (London: Tavistock Press, 1971); Johan Galtung, Peace By

Peacefid Means: Peace and Conflict, Development and Civilization (Thousand Oaks, CA:
Sage, 1996).

6 e.g., see P.H. Gulliver, Disputes and Negotiations (New York: Academic Press, 1979).

7 E. Babbitt, and Tamra P. d’Estree, “An Israeli-Palestinian Women’s Workshop: Application

of the Interactive Problem-Solving Approach,” in Managing Global Chaos: Sources Of and
Responses To International Conflict, eds. Chester A. Crocker, Fen O. Hampson, and Pamela
R. Aall, 521-529 (Washington, DC: U.S. Institute ofPeace, 1996).

8 Stuart W. Cook, “The 1954 Social Science Statement and School Desegregation: A Reply to

Gerard,” American Psychologist 39 (1984): 819-832.; Walter G. Stephan and J.C. Brigham,
“Intergroup Contact: Introduction,” Journal of Social Issues 41 (1985): 1-8; See also Robert
A. Baruch Bush and Joseph P. Folger, The Promise of Mediation: Responding To Conflict
Through Empowerment and Recognition (San Francisco: Jossey-Bass, 1994).

9 P.H. Gulliver, Disputes and Negotiations, 1979.

10 Herbert C. Kelrnan, “Coalitions Across Conflict Lines: The Interplay ofConflicts Within and

Between the Israeli and Palestinian Communities,” in Conflict Between People and Groups,
eds. Jeffry A. Simpson and Stephen Worchell, 236-258 (Chicago: Nelson-Hall, 1993).

11 Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediation, 1994.

2 Cf. Virginia Held, Justice and Care: Essential Readings in Feminist Ethics (Boulder, CO:
Westview, 1995).

13 Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediation, 1994.

Chapter Nine

EVALUATING CRITERIA FOR SUCCESS

Any evaluation must articulate its criteria. Chapter 2 highlights the diverse
array of possible criteria for evaluating success in ECR, each of which can
themselves be scrutinized with regal'd to their usefulness. In this chapter, we
evaluate each criterion based on our experience of applying them to case stud-
ies of western U.S. water conflicts. In order to inform future case analyses, we
also summarize our findings on the best time (over the life of a dispute, an
Outcome and its implementation) to measure each criterion, and we provide
other methodological notes on operationalizing the criteria. This chapter de-
scribes what we learned by applying the success criteria to case studies and it
provides recommendations for the future use of these criteria with the frame-
work presented in this book.

Readers may notice that additional criteria beyond those discussed here are
presented in Chapters 2 and 3, and in the Guidebook in Appendix A. This is
due to the need for criteria revisions and clarification as case studies were be-
ing conducted. Some criteria were not developed for use by case researchers
until after the studies were completed. Consequently, this chapter evaluates
only those success criteria used in the original project case analyses. 1

We evaluate the performance of the success criteria, as operationalized
and applied to the case studies, using three methodological criteria: accessibil-
ity, reliability and validity. For “accessibility,” we ask if information was ob-
tainable to answer the questions posed in the guide for each success criterion
and if not, why. We note the sources of information, the triangulation of in-
formation using independent sources, and the costs and difficulties of obtain-

240

Chapter Nine

ing information. We also consider whether the criterion and information re-
quested in the guide should be recast to better match the available information
sources.

For “reliability,” we consider whether other researchers would have un-
covered the same information and developed the same impressions and
whether researchers sought diverse viewpoints while investigating different
questions. We also evaluate the degree to which collected information was
influenced by spurious factors such as researchers’ personal connections and
disciplinary expertise, the presence or absence of cooperative contacts, and
the degree of record-keeping by public agencies on specific cases.

For “validity,” we first consider whether each criterion is a conceptually
valid indicator of the success “concept” being addressed. For instance, is cul-
tural sustainability a valid criterion under the category of “Outcome Quality,”
or is public acknowledgement of outcome a valid criterion under “Outcome
Reached”? Then we ask whether the indicators used to operationalize each
criterion are valid measurements of the success concept we sought to meas-
ure. If not, we reflect on whether a different kind of question should have
been asked for that criterion. We also assess whether the criterion as currently
conceived was applicable to the different types of cases and Outcomes and, if
not, how it could be refined for broader applicability. 2 Each criterion’s ratings
on our three methodological criteria are displayed at the end of the chapter in
Table 9.1.

Our analysis also suggested that there are better and worse times to assess
each criterion. Possible assessment times include: (1) baseline, before the
resolution process, (2) during the resolution process, (3) immediately upon
achieving the Outcome, (4) short-term after the Outcome is reached, and fi-
nally, (5) long-term after the Outcome has been achieved and implemented
(see Figure 9.1).

BASELINE
before reso-
lution proc-
ess

DURING
the resolu-
tion process

When

Outcome

Achieved

IMPLEMENTATION

SHORT-
TERM after
Outcome

LONG-
TERM after
Outcome

Figure 9.1 Stages for Criteria Assessment

Knowing which criteria to assess at a given stage can make evaluation eas-
ier. For each criterion, we considered when each ideally might be assessed.
This information is displayed in Table 9.2 at the end of this chapter, but can
fruitfully be consulted as each criterion’s evaluation is summarized. In sum.

Evaluating Criteria for Success

241

this chapter evaluates each criterion. Each criterion's definition is restated,
followed by an assessment of each criterion’s accessibility, reliability and va-
lidity. We then discuss related methodology issues and timing for measure-
ment for each criterion. The chapter concludes with a discussion of our find-
ings and their implications.

I. OUTCOME REACHED

This category contains criteria that assess the basic achievement of reach-
ing a conclusion.

A. Unanimity or Consensus

Unanimity or consensus assesses the strength of approval for the Outcome,
the degree of dissension over it and the absence of key parties.

Evaluation

Accessibility — Information confirming that an Outcome had been
reached was readily available from media sources, with little cost or diffi-
culty. However, it was more difficult to verify whether all key parties were
represented at the table. Instances in which a key party walked out or objected
to the Outcome were noted in media sources. But it is innately difficult to
document that all interests were represented, unless an unrepresented party
made themselves publicly known. Moreover, the negotiating parties may col-
lectively agree to withhold disagreements from public knowledge. Most re-
searchers did not seek more than one source to verify that an Outcome had
been reached. In those cases for which information was triangulated, the
sources included court reports, newspapers and web sites.

Reliability — Researchers should be able to verify that an Outcome was
reached. An Assessment of the representativeness of the parties might vary,
depending on the personal knowledge of the researcher. In some but not all
cases, views from diverse parties were cited. Spurious factors influencing re-
liability might include the varying accessibility of different parties’ view-
points, as well as the researcher’s knowledge of the case and its parties.

Validity — The original criterion of unanimity did not apply in a straight-
forward manner to the two cases for which the Outcomes were court rulings,
or to the Lower Colorado River case in which the Outcome was promulgation
of an agency administrative rule. There likely were negotiations through the
course of litigation and during political activities undertaken by parties to in-
fluence administrative actions. In fact, in some cases an agency action or leg-
islation might merely be the formalization of an agreement. These negotia-

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tions might remain undiscovered if the case researcher focuses on a particular
piece of legislation or administrative action. It would be instructive to attempt
to analyze these prior interactions along with the litigation, legislation, and
administrative actions that were the primary focus of these case analyses.

In cases involving state legislation, media sources provided some coverage
of parties’ attitudes toward the legislation. The unanimity criterion applies
directly to the cases in which a negotiated agreement was analyzed. For the
Salt River and Pyramid Lake cases, the criterion was analyzed with respect to
the agreement among local parties and not to later congressional debate and
ratification. Unanimity/strength of approval could have also been applied to
the congressional process.

Unanimity/Consensus proved to be more difficult to assess than expected
and, as operationalized, is an incomplete and potentially inapplicable measure
for some dispute resolution processes of the overall success concept, “Out-
come Reached.” Moreover, it is not clear exactly whose approval should be
assessed for different types of Outcomes. For a negotiated agreement, it is
fairly clear to assess the approval of the parties. But for a court ruling or ad-
ministrative action, it is not clear whether unanimity should be assessed
among the parties or among the judges or administrators making the ruling.

Further Methodology Notes — It proved surprisingly difficult to docu-
ment that all parties were at the table (or that all actually agreed) from readily
accessible information. To verify this would require careful interviews of all
parties and affected interests.

It is necessary to clarify whose strength of approval should be measured
for different types of Outcomes. Should case researchers document the votes
of legislatures, panels of judges and administrative boards, or does this crite-
rion apply only to negotiated agreements?

Timing for Measurement — This criterion is best assessed at the time that
an Outcome is announced when media coverage is most widespread. How-
ever, media sources can also be accessed later through library and internet
research. The question of whether all key parties were represented should be
examined at the time an Outcome is achieved. However, a key party’s ab-
sence may not become apparent until problems with implementation arise.
Consequently, this issue should be re-examined at later stages of the evalua-
tion.

B. & C. Verifiable Terms/Public Acknowledgment of Out-
come

Verifiable terms/public acknowledgement of outcome seeks to verify con-
sensus on the terms of the Outcome and that it was publicly confirmed. Re-
searchers were asked to provide information on whether the Outcome was

Evaluating Criteria for Success

243

written and formally signed, on evidence of a common understanding of the
terms and on media events surrounding the Outcome.

Evaluation

Accessibility — Information confirming a written Outcome was easy and
inexpensive to obtain, as was information on the publicity surrounding the
Outcome. The primary sources for this were internet and library records of
media coverage. The question of whether the parties shared a common under-
standing of the terms of the agreement was not readily verifiable from avail-
able sources. Researchers generally did not seek similar information from
several different sources. A few researchers had difficulties tracking down
media coverage, due to either lack of internet expertise or to the fact that some
Outcomes were reached prior to the 1990s and media sources from that period
are less readily available.

Reliability — Researchers all should have been able to find consistent in-
formation to document that a written Outcome was developed and to assess
the publicity surrounding it. There are no apparent spurious factors, though
local access to press sources may be useful. As noted above, it is difficult to
determine that there was a common understanding of the terms among the
parties.

Validity — As discussed under unanimity, the concept of consensus did
not apply to cases where the Outcome was a court ruling, administrative rul-
ing or legislation. Asking whether the Outcome was in writing and whether
there was publicity around achieving the Outcome is, at best, an imprecise
manner to verify that the parties had a common understanding of the agree-
ment. However, a signed written Outcome is a valid first indicator of consen-
sus on terms. This notion of a “common understanding of terms” should be
assessed when any problems with implementation are examined. The “com-
mon understanding” indicator overlaps with Criterion III.C, Clarity of Out-
come. Later misunderstandings and disagreements over terms may be a better
indicator of “Outcome Reached” than whether there was initial publicity
around the Outcome.

Moreover, when the Outcome is a court ruling, administrative action or
legislation, it would be useful to examine whether the parties had a common
understanding of the terms of the Outcome. This would best be assessed later,
when checking for misunderstandings and differences in interpretation as the
implementation of an Outcome progresses.

Timing for measurement — The existence of a written Outcome should be
assessable any time after the Outcome is announced. However, as noted
above, a consensus on the understanding of the Outcome may be more effi-
ciently assessed after implementation has begun.

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D. Ratification

Ratification assesses whether Outcomes were formally approved by rele-
vant governments and courts. Researchers were asked to provide information
on ratification by all necessary constituencies (with date and ratification proc-
ess noted), and on court review and approval (with specific courts and dates
noted).

Evaluation

Accessibility — Information on congressional ratification of agreements
and on state enactment of legislative agreements was readily accessible from
media sources. However, ratification by tribes, cities and water districts was
not well documented. It is not clear whether this is due to researchers not
knowing that negotiated agreements typically need to be ratified by all signa-
tories that are government entities, or due to the absence of publicity or inac-
cessibility of public records on ratification by other levels of government.

In cases with a court or administrative ruling, the government entities of-
ten later enacted policies to comply with the ruling. Information on this was
not explicitly requested under I.D. Ratification in our original framework.
However, when provided it proved useful in assessing the success of the Out-
come and the process. Sometimes, judicial approval of an Outcome is re-
quired, so the case study research will need to inquire whether this was ob-
tained. For instance, the Edwards Aquifer, Pyramid Lake and Mono Lake
cases each involved litigation which helped stimulate a negotiated agreement
and/or legislation. Court approval is sometimes required for an Outcome
stimulated by litigation, and court scrutiny may be invoked by an unsatisfied
party who later reopens litigation.

Reliability — Some researchers were more successful than others at
documenting ratification by multiple levels of government. Ratification by
tribal governments was the most difficult to document. Because the occur-
rence of judicial approval and ratification by constituencies is a matter of fact,
not generally subject to differing perceptions, there does not seem to be a
need to seek diverse views. The researchers’ degree of familiarity with legal
and political processes may have influenced their ability to document ratifica-
tion and court approval. Also, those researchers with local access to docu-
ments and media may have an advantage in being aware of ratification by a
particular party. The researcher in the Snowmass case lives in the area and
was able to visit water court offices to check personally on document filings.
Yet the researcher in the Salt River case was able to document ratification by
municipalities despite being located far from the case study locale.

Validity — Information that confirms ratification by the relevant parties
and court approval, when needed, is an important indicator of the success

Evaluating Criteria for Success

245

concept, “Outcome Reached” as it indicates a formal approval of the Out-
come. Without formal approval, one might question whether a valid Outcome
had been achieved at all. Ratification does not apply directly to Outcomes that
are court rulings and administrative rulings. Judicial approval does not apply
directly to legislative Outcomes and administrative rulings but does apply to
some, but not all, negotiated agreements. This criterion was difficult to opera-
tionalize because researchers did not necessarily know which governments
would need to ratify an Outcome and which, if any, courts would need to ap-
prove an Outcome. Moreover, it is not clear how they could be certain if these
are needed for any particular Outcome. Locating this information becomes
part of the research itself.

Further Methodology Notes — Researchers need guidance on how to as-
certain whether ratification and judicial approval is needed and by which gov-
ernments or courts. Researchers should begin with the presumption that any
government signatory to a negotiated agreement (nation, state, city, county,
tribe, water district, public utility) needs to ratify the agreement. Researchers
need to investigate, first of all, whether any formal ratification or court ap-
proval of the agreement is required and, if so, by whom. The researcher then
needs to ask if these requirements were satisfied, when (dates), and in what
form (tribal council vote, city referendum, water district resolution). These
questions are all included in the current Guidebook (Appendix A).

An Outcome that is not a court ruling may have still been stimulated by
prior litigation. This is the case for all four of the negotiated agreements and
legislative actions in our case studies. In these cases, the Outcome must con-
form to the provisions of prior relevant court rulings and these provisions
should be noted as part of the case documentation process. Prior court rulings
and conformance of Outcomes with these rulings are relevant to ratification,
but may best be assessed under legal feasibility (below, section III.G).

Timing for Measurement — Ratification and judicial approval are matters
of public record and should be measurable anytime after they occur, though
they may be easiest to track at the time they are accomplished. Adoption of
policies by governments in response to the Outcome should be documented.
This may be done best when later examining implementation.

II. PROCESS QUALITY

This category contains criteria that focus on the nature of the process used.

A. Procedurally Just

ProceduraUy just seeks to ascertain the perceptions of parties and others
on the justice ofthe process. Specifically, this criterion asks whether the proc-

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ess was fair, balanced, complete and thorough in the sense of both issues and
parties, and not compromised by time constraints or power imbalances. This
overlaps with assessment of parties’ satisfaction with the process (see Chapter
2).

Evaluation

Accessibility — Information on perceptions of procedural justice is avail-
able, but it requires a focused effort to collect. Few researchers were ade-
quately thorough. Some experience by the researcher in searching for such
information was clearly an advantage, both in obtaining the information, and
in the basic recognition that this was not a simple or short question. In light of
the past extensive research on perceptions of procedural justice (see the re-
view of this literature. Chapter 2), several dimensions were included in the
Guidebook. Researchers were required to use at least some media sources in
order to address these thoroughly. Other sources included texts of the agree-
ments themselves, party newsletters and websites, promotional materials, and
texts of public speeches. With a willingness to plunge into media sources, this
criterion could be readily verified. Many researchers did not address the un-
derlying dimensions of this criterion thoroughly, however, and instead relied
on the impression of only one or two sources, or commented on their own
impressions based on inferences from subsequent behaviors of parties.

Accessing information for this criterion requires effort and resources. Lo-
cal media sources are useful, but because they may not be nationally relevant,
they are often not archived nationally or widely available. Reading multiple
sources to find diverse perspectives is time consuming. Sleuthing skills are an
advantage. Finding complete information on this criterion often required per-
sistence and determination on the part of the researcher.

Reliability — The reliability of this criterion is directly related to attention
to the underlying dimensions of the construct of procedural justice (e.g., fair-
ness, timing, voice, thoroughness, inclusiveness, etc.). In cases where re-
searchers based their assessment of procedural justice on overall impressions
and only one source, rather than investigating the individual dimensions out-
lined in the Guidebook and multiple sources, the reliability for the assessment
is low. Other researchers could glean very different impressions of percep-
tions of justice by citing similarly limited (but different) sources. When re-
searchers expend the time and effort required to be thorough on this criterion,
their assessments are more likely to be replicable.

Validity — The criterion as set out and detailed in the Guidebook has high
validity, being based on current theory and research on procedural justice. If
the criterion is not addressed as operationalized in the Guidebook, and only
one or two dimensions are examined, then the analysis can be questioned as
incompletely examining procedural justice.

Evaluating Criteria for Success

247

In the few cases studies for which investigation of the underlying dimen-
sions of procedural justice was thorough, it became apparent that the informa-
tion most readily available was on the dimension, “all concerns were/were not
taken into account” (inclusiveness). As a result, even thorough assessments of
procedural justice may still end up weighting this dimension more heavily
than others.

Reliability issues also have a direct impact on criterion validity. If only
limited aspects of the construct are sampled and examined, differences be-
tween researchers will be exacerbated, and the information gathered loses its
predictiveness.

Further Methodology Notes — This criterion may be best assessed
through interviews with all parties on the complete range of indicators.

Timing for Measurement — This criterion is probably most easily as-
sessed directly following the process, while it is prominent in the media. Veri-
fication from sources other than the media requires more time to pass before
the information actually appears (in internal newsletters, promotional materi-
als, and websites). Probably the most useful time to assess this information
would be during the process, so adjustments can be made if the process falls
short. Media sources might be useful for this, but direct surveying of parties
would be productive during an ongoing process, and the validity and reliabil-
ity (and therefore usefulness) of such assessments would be high.

B. Procedurally Accessible and Inclusive

The procedurally accessible and inclusive criterion sought to ascertain the
actual availability of two components that contribute to perceptions of proce-
dural justice: first, did opportunities for public participation exist, and second,
did the public have access to information on issues and upcoming participa-
tion opportunities. The first asked for details (dates, timing, location, atten-
dance, and effectiveness) of any public hearings, town meetings, surveys, hot-
lines, citizen boards, or other forms of public outreach and polling. The sec-
ond component asked for notes on attempts to notify the public, and the na-
ture of the contact medium.

Evaluation

Accessibility — For the two cases of administrative rules (Mono Lake and
Lower Colorado River), information on public participation was easily acces-
sible. Typically, extensive media coverage could be consulted. Researchers
also found information on agency documents and files, promotional materials,
summaries of public fora on agency websites, and press releases from agen-
cies. Environmental Impact Statements and other documents produced to sat-
isfy NEPA requirements often describe public meetings. Those researchers

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who had such cases were able to provide details of attendance and public in-
volvement.

For cases of court ruling, public participation is not a consideration.

The processes for negotiated agreements often were private and confiden-
tial, so information on the process may be difficult to obtain since there may
actually be no minutes or records. Information on one such agreement in the
Salt River case was obtained after the fact from one of the relevant agencies,
under the Freedom of Information Act.

It was surprisingly difficult to obtain information on public participation
for legislative processes. Presumably, hearings open to the public were held,
but evidence of this was found in only one of the two legislation cases, and
details were not available.

Information on the other indicator for this criterion, public access to in-
formation about issues and meetings, was uniformly difficult to obtain, re-
gardless of the type of process. Likely sources such as advertisements, public
postings, radio broadcasts, etc., are ephemeral and not archived in public re-
cords.

Reliability — In general, information for this criterion was difficult to
gather without being local, and present during the process. In the few cases
where public participation was mandated, formalized, and record keeping was
required, information was readily available and could be reliably assessed.
However, even in these cases a researcher would have to know about the exis-
tence and location of such records. The necessity of such specialized knowl-
edge makes reliable assessment less likely. In response to this, we have added
an appendix to the Guidebook on policies that mandate public participation
(Appendix B).

Validity — When available, these measures are good indicators of the
level and quality of public involvement. Again, for some processes (court rul-
ings, private negotiations), public involvement may not be a consideration.

The second component (public access to information) is only measured in-
directly, through announcement of information availability. This does not di-
rectly describe the difficulty or ease a member of the public might have in
obtaining information. Ideally, one would also have to factor in the resources
available to parties and the public for obtaining information, and the degree to
which resources and status aid access to information and participation in pub-
lic meetings or consensus-building processes.

A larger question can be raised about public participation and access to in-
formation and their centrality to the concept of successful resolution. Cases
which some might regard as successful with a “quality process” did not al-
ways have open and public processes. It would be interesting to consider ways
to measure the quality of a confidential and private process.

Timing for Measurement — Public participation was either impossible to
determine, or well documented. If well documented, it could be assessed at

Evaluating Criteria for Success

249

any subsequent point. If it was not considered central, assessments could only
be made locally at the time of the process, such as attendance at court hear-
ings or legislative sessions. Such information is rarely reported in the media,
though it was reported for one of our case studies. As with procedural justice,
the researcher’s local presence could help to assess this criterion.

As noted above, it was virtually impossible to assess public access to in-
formation and announcements of meetings after the fact. When an administra-
tive process required notification, a note was made that it had been advertised,
although the only subsequent records were those published in the Federal
Register. One researcher found a press release, which presumably led to pub-
lic announcements. No researchers were able to find other sorts of announce-
ments, notifications, signage, or evidence of media broadcasts. Much more
thorough assessments could be made of this indicator if it were assessed lo-
cally during the time of notice.

C. Reasonable Process Costs

This criterion examines costs associated with the process being analyzed,
with cost information organized into three categories according to who bears
the costs.

Evaluation

Accessibility — Researchers provided two types of cost information in the
case studies. Most commonly, perceptions of the costs of participation were
reported as quotes from one or more of the parties. Less commonly, there
were estimates of actual process costs incurred.

Complete information on the costs of participating in the process was not
available for any case or even for any one party in any case. Cost information
is not routinely compiled by case for either public agencies or private sector
participants. When such information is compiled internally by a party, they
may not choose to make that information available or it may not be available
in a convenient form (i.e., scattered records in several different departments).
There were a few instances in which agency officials or environmental or-
ganizations offered to check their records and provide an estimate of their
costs.

Anecdotal quotes from one or more of the parties expressing views about
the cost of a process were available for most of the cases primarily from me-
dia sources.

One of the difficulties of obtaining actual cost estimates lies in locating a
cooperative contact that is willing to check records and gather cost estimates
for their party.

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Reliability — Researcher skills, persistence and specialized knowledge of
the case and its parties affect the amount and quality of information. This, of
course, is true for many of the criterion, but particularly for cost data, which
may be privileged information or may take time and trouble for parties to
compile.

In general, a particular party will only be familial' with their own process
costs so there is little likelihood of confirming costs for a specific party
through several independent sources. An exception might occur when a gov-
ernment agency is responsible for covering some of a particular party’s costs.
The US Department of Interior and Department of Justice, for instance, cover
some of the costs incurred by Native American tribes to adjudicate and nego-
tiate their reserved water rights and some costs for federal agencies involved
in conflicts. Cost information also may be available from the federal Office of
Management and Budget, the General Accounting Office, or the Congres-
sional Budget Office if those agencies have analyzed the case from a cost per-
spective. Public documents from these sources, when such documents exist,
provide an opportunity to triangulate cost data.

Validity — Reasonable process costs are a valid component of process
quality. However, as operationalized, complete process costs could not be
compiled for any case and so this criterion remains an incomplete measure.

III. OUTCOME QUALITY

Criteria in this category examine the quality of the Outcome provided by
the conflict resolution process.

A. Cost Effective Implementation

Cost effective implementation assesses whether an agreement took a cost-
effective approach to resolving the natural resource problems in the conflict.
Collected data include costs to parties at the table, to the public (agencies,
courts, other costs paid through taxes) and to others, such as utility ratepayers.

Evaluation

Accessibility — Researchers provided two types of cost information in the
case studies. Most commonly, perceptions of the costs of implementing the
Outcome were reported as quotes from one or more of the parties. Less com-
monly, there were estimates of actual costs incurred or of projected future
costs based on data and records from parties or an independent observer.

Complete information on the costs of implementation was not available for
any case, or even for any one party in any case. When cost information is

Evaluating Criteria for Success

251

compiled internally by a party, they may not choose to make that information
available or it may not be in a convenient form (i.e., scattered records in sev-
eral different departments). For negotiated agreements in which cost sharing
of implementation is specifically negotiated, this information can be obtained
from the agreement itself or from analyses of the agreement. There were a
few cases in which a prior research effort had compiled information on costs
for one or more of the parties. Since cost data is so difficult to obtain, it gen-
erally cannot be confirmed by checking with more than one source.

Anecdotal quotes that expressed views about the cost of an Outcome were
available for most of the cases from one or more of the parties, primarily from
media sources.

As with process costs (II.C), the difficulty of obtaining actual implementa-
tion cost estimates is in locating a cooperative contact that is willing to check
records and gather cost estimates for their party.

Reliability — Researcher skills, persistence and specialized knowledge of
the case and its parties affect the amount and quality of information that can
be obtained. Cost data may be privileged information or may take time and
trouble for parties to compile. Familiarity with economic concepts helps re-
searchers identify some of the less obvious categories of costs (opportunity
costs, contributions of assets other than money, costs deferred to future years).
To assist future research efforts, an economics appendix (Appendix C) has
been added to supplement the Guidebook found in Appendix A.

In general, a particular party will only be familiar with their own imple-
mentation costs, so there is little likelihood of confirming costs for a particular
party by checking several independent sources. Flowever, sometimes costs
involving expenditure of federal money will be investigated by a public or-
ganization such as the US General Accounting Office, the Congressional
Budget Office, or the Office of Management and Budget. In addition, Envi-
ronmental Impact Statements (and Assessments and Reports) typically in-
clude a section on economic and financial impacts of the policy being ana-
lyzed.

Validity — Initially, it was not made clear whether costs associated with
the process of reaching an Outcome or costs associated with implementing the
terms of the Outcome were to be investigated. In general, case researchers
ended up doing one of these, but not both, for any one case. The latter is now
addressed under the success category “Outcome Quality.” The former is ex-
amined under “Process Quality.”

As a concept, cost-effectiveness is a valid indicator of Outcome quality.
Outcomes that provide for solving the water conflict in a least-cost manner
are viewed as more “successful” than those that involve unnecessary costs and
a waste of water, money and time. For instance, an Outcome that provides
additional water for a particular need through water conservation and transfers
will generally be more cost-effective than an Outcome that provides for con-

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struction of a new dam and reservoir or transportation of water across long
distances.

Cost-effectiveness, as an evaluation concept, implies that specific goals
have been identified and examines the relative costs of different means for
accomplishing those goals. Cost-effectiveness does not explicitly examine
benefits . 3 As a criterion, it assumes that the goals agreed to by the parties are
“worth” accomplishing. Cost-effectiveness is appropriate for analyzing nego-
tiated agreements, court rulings, administrative actions and legislation in
which the goals have been clearly identified.

As operationalized, however, this criterion did not adequately address the
issue of whether the Outcome promotes relatively low-cost solutions to con-
flicts. Moreover, some case study researchers included costs that could not be
directly attributed to the Outcome, but were general regional costs of water
supply and water management. This incorrect attribution of costs needs to be
minimized by the establishment of a well-defined baseline to distinguish costs
and impacts that are directly related to a particular agreement. We want to be
able to say, for instance, that a court ruling caused a ten- percent increase in
water rates. However, this type of comparison requires clear identification of
the water rates without the ruling. (This careful identification of a baseline for
purposes of assessing an agreement is known as the “with and without princi-
ple” and is discussed in detail in Appendix C).

In principle, the concept of cost-effectiveness can be applied to all of the
types of Outcomes analyzed, although it is not generally an explicit goal of
court rulings. The criterion was difficult to operationalize for all types of Out-
comes.

Timing for Measurement — The provisions of an Outcome can be ana-
lyzed any time after the terms are available in order to examine the ap-
proaches to resolving water problems. However, the actual costs of imple-
menting the Outcome will not be known until implementation is complete,
and even then may not be accessible, as cost information is likely to be dis-
tributed across many stakeholders and over many years. Parties’ perceptions
regarding their likely implementation costs could be ascertained easiest when
the Outcome is reached and there is media coverage of the affected parties’
reactions.

C. Financial Feasibility/Sustainability

Financial feasibility/sustainability assesses how the agreement addresses
the issues of cost allocation, funding for implementation and ensuring that
economic incentives encourage compliance and support implementation. Re-
searchers were asked to summarize information on cost allocation among par-
ties, their ability to pay, spreading costs over time, large deferred costs, water

Evaluating Criteria for Success

253

pricing to promote conservation and other economic incentives to support im-
plementation, loans and cost-sharing arrangements, and unfunded mandates.

Evaluation

Accessibility — Information on cost allocation among parties and across
time, water pricing and other incentives to support implementation, and on
loans and cost sharing was most readily accessible when the Outcome itself
contained these provisions. Some or all of the above items were included in
the two negotiated agreements, the two legislated Outcomes and one of the
two administrative actions. Citations from the Outcomes and commentary by
parties and independent observers were used as sources. Information of this
sort was not readily available for the court rulings, though quotes in the media
from parties and observers provided some information on the financial impli-
cations of rulings. Information was not reported from more than one source,
with the exception of quotes expressing opinions, which were reported for
more than one party for some cases.

A few cases contained information on the ability of parties to pay and on
unfunded mandates directly in the terms of the Outcome. In several other
cases, information consisted of quotes from parties expressing their opinion
on these matters. In the remaining cases, no information was reported and
these issues may not have been relevant to the case.

Reliability — Researcher skills, persistence and specialized knowledge of
the case and its parties affect the availability of information on actual costs
incurred by parties. Familiarity with economics helps researchers identify
some of the less obvious categories of costs and financing mechanisms (con-
tributions of assets other than money, costs deferred to future years). Appen-
dix C supplemental to the Guidebook, was added to assist this.

Validity — The specific questions under the criterion, “Financial Feasibil-
ity/Sustainability” are useful indicators of Outcome Quality, although several
items are merely descriptive (cost allocation among parties and across time)
and are not, as phrased, evaluative.

Timing for Measurement — For written Outcomes, which address the is-
sues raised, the information is available anytime after the Outcome is made
public. Quotes reflecting the perceptions of the parties are most available
around the time the Outcome is reached, but can be retrieved later from media
archives. Problems regarding ability to pay and unfunded mandates may not
become apparent until difficulties arise with implementation. These issues
should be re-evaluated as implementation proceeds. The nature and magni-
tude of financial responsibilities also should become more clear as implemen-
tation proceeds.

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D. Cultural Sustainability/Community Self-Determination

Cultural sustainability /community self-determination asked for a record of
communities affected by the Outcome and an assessment of the types of po-
tential effects. These effects include demographic and economic effects, such
as changes in patterns ofjobs, income, taxes, etc., but also changes in patterns
of ownership, changes in decision-making authority or jurisdiction, and
changes in the social or cultural “lifeways” of the impacted communities or
the relative balance of these lifeways (the “cultural mix”).

Evaluation

Accessibility — Researchers were able to find material (from the agree-
ment and commentary on the agreement) regarding consideration of cultural
resources and protective measures adopted as part of an agreement. For some
cases, parties were quoted (from media sources) on the effect of the agree-
ment on culture and/or way of life. In those cases for which cultural issues
were a concern, there seemed to be little cost or difficulty in obtaining infor-
mation.

Material on community impacts seemed fairly easily accessible, though
the sources varied widely. Most researchers used at least some media sources,
often including national newspapers or wire service reports. Some also con-
sulted the agreements themselves, as well as journals, party newsletters, pub-
lications of national and state water resource associations, and promotional
videos. One report cited a draft environmental impact report.

No researchers provided information on changes in socioeconomic indica-
tors over time. For most cases, it was too soon to assess such long-term indi-
cators. For one case (Pyramid Lake), the researcher was able to locate rele-
vant information, but deemed it too expansive an analysis for the current re-
port.

Reliability — When the agreement itself addresses cultural issues, infor-
mation is readily obtainable and not subject to spurious factors often related to
access. In general, only those parties concerned about effects on their culture
or way of life were cited. Other parties may have little or no comment on the
subject.

In general, reports on community impacts use multiple sources and are tri-
angulated and verified, so reliability is likely to be high. Three case reports
cited only one source (Big Florn, Edward Aquifer, Pecos River), and so reli-
ability for these reports on this criterion may be lower.

Validity — Conceptually, the fact that an Outcome considers impacts on
cultural resources and ways of life is a valid component of Outcome Quality.
As operationalized, researchers were able to note when cultural issues were an
issue in the process, but were not able to systematically evaluate how well

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255

Outcomes actually addressed these issues. Moreover, in some cases there was
no evidence that cultural issues were important and, in other cases, the Out-
come may not have sought to address cultural issues even though one or more
parties were concerned (i.e. Pyramid Lake, agricultural way of life issues).

In general, most indicators for this criterion appeal - to be valid measure-
ments of impact on cultures and communities. However, several researchers
omitted a listing of communities affected.

It may be difficult to strongly connect changes in socioeconomic indica-
tors to the Outcome or the conflict resolution process itself. Many of these
indicators will change naturally over time, as the result of a number of other
factors. Therefore, causal conclusions must be extremely guarded.

Timing for Measurement — The provisions of the Outcome itself can be
analyzed any time. Panics’ perceptions are most likely to be detectable at the
time the Outcome is reached or later, when a phase of implementation raises
cultural issues.

The potential for these effects can be assessed when the Outcome is
reached, and any time thereafter. As with most implementation criteria, actual
assessment of most of these effects requires the passage of time. For most
cases, it was too soon to assess actual effects.

E. Environmental Sustainability

The environmental sustainability criterion assesses the degree to which the
Outcome considers drought, environmental factors and other natural contin-
gencies, either through direct language in the Outcome or through participa-
tion of environmental advocates (agencies and organizations) in crafting the
Outcome and implementation. This criterion also asks what natural resources
are committed for implementation, over what time frame, and with what envi-
ronmental impacts.

Evaluation

Accessibility — Information on consideration of drought, environmental
impacts and projected resource uses over time was obtainable from the Out-
come itself and from comments by parties and others reported in the media
regarding the Outcome, with little cost or difficulty. However, the participa-
tion or inclusion of environmental groups or agencies proved more difficult to
verify unless they were key parties whose presence was widely noted in me-
dia sources.

Early guidebook questions regarding commitment of natural resources un-
der the Outcome were vague and were not addressed by most of the research-

ers.

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Reliability — Other researchers should be able to uncover the same infor-
mation regarding terms of the Outcome pertaining to drought, environmental
impacts and resource use over time. Collection of information on participation
by, and inclusion of, environmental interests may be more subject to spurious
factors, such as researchers’ connections to parties and prior familiarity with
the case. In general, the researchers for this criterion did not seek diverse
views. This may not be a problem as drought and environmental impacts gen-
erally could readily be verified as key issues or, if not mentioned in media and
other sources, would not be considered a central issue in the case.

Validity — The questions raised under the criterion “Environmental Sus-
tainability” are conceptually valid components of “Outcome Quality.” As op-
erationalized, however, it proved difficult to verify that an Outcome ade-
quately addressed drought, other natural contingencies and environmental
impacts. Researchers generally were able to comment on whether or not the
Outcome had clauses related to these topics, but evaluation of an Outcome’s
adequacy to respond to an actual drought or to unanticipated environmental
impacts could not be accomplished until these occurred and the parties had to
respond. Failure to adequately consider environmental impacts may not be-
come apparent until implementation progresses. Moreover, drought is not a
dominant concern in every watershed so an Outcome that does not discuss
drought is not necessarily deficient.

The questions under this criterion apply least directly to court rulings, and
most directly to negotiated agreements, administrative actions and legislation
- all of which can be expected to address practical water management issues
such as drought. Courts typically rule only on narrow legal issues and gener-
ally do not have a mandate to address contingencies and potential impacts.

Timingfor Measurement — Wording of the Outcome can be assessed af-
ter it is made public. However, adequacy of the Outcome in addressing
drought and environmental impacts can only be measured after these issues
have arisen during implementation. Participation/inclusion of environmental
interests can best be assessed at the time an Outcome is reached, when media
and commentary by affected parties are most accessible.

F. Clarity of Outcome

Clarity of Outcome assesses whether the Outcome was clearly worded and
performance standards were specified. Researchers were asked to provide in-
formation on misunderstandings and differences in interpretation (if any), and
to examine Outcome language for ambiguity. They were also asked to check
the Outcome and its implementation for well-defined baselines and perform-
ance standards (water use, stream levels, conservation efforts).

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257

Evaluation

Accessibility — The development of subsequent misunderstandings were
not immediately discernable in our cases as most of the Outcomes were fairly
recent and in early stages of implementation. However, parties’ comments on
ambiguity and anticipated differences in interpretation were reported from
media sources. Most researchers did not independently review Outcome lan-
guage for ambiguity. Information on baselines and performance standards was
cited for a few cases, based on the Outcome and comments regarding the Out-
come. However, this item was not reported for several cases in which it is a
relevant issue.

Reliability — There was a good deal of variability across cases regarding
the depth to which Outcome Clarity was addressed, only partially due to dif-
ferences among cases. For some cases, only one parties’ viewpoint regarding
ambiguity was cited, leaving it unclear whether other parties also perceived
this as a problem. The question about baseline/performance standards was not
carefully addressed in several cases where it did apply (Pyramid Lake, for
instance).

Validity — The questions concerning later misunderstandings and well-
defined baselines and performance standards are conceptually valid indicators
of Outcome Clarity. However, they were difficult to operationalize. For most
cases, not enough time had passed to verify whether ambiguities became ap-
parent. Moreover, when parties complained about ambiguity at the time the
Outcome was produced, it is not clear whether there really was confusion over
meaning or they simply did not like a particular provision of the Outcome (as
in the Big Horn case, a tribal attorney criticized the court ruling). Some par-
ties prefer ambiguity in the Outcome, as this would leave them more flexibil-
ity.

Further Methodology Notes — It is not a sound strategy to require re-
searchers to review the language of an Outcome for ambiguity. Most case re-
searchers would not have sufficient familiarity with the case and with techni-
cal and legal terms to accomplish this. It is preferable, instead, to search for
commentary from parties and independent observers on the matter. For
lengthy, complex Outcomes, it is more time-efficient to rely on neutral ex-
pert’s summaries and analyses. The researcher should not be encouraged to
review an entire Outcome for ambiguity, but rather to seek commentary on
this matter by others.

An examination of the terms of the Outcome, as well as commentary on
the Outcome, can assess the question of baseline/performance standards.

Timing of Measurement — Later misunderstandings cannot be investi-
gated until implementation proceeds, though concerns about ambiguity may
be expressed early on. Outcome provisions specifying baselines and perform-
ance standards can be assessed any time after the Outcome is made public.

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G. Feasibility/Realism

The feasibility/realism criterion addresses whether the Outcome is realistic
in its assumptions and can be implemented given legal, political and technical
considerations. Does it consider the legal and political context? Are the scien-
tific and technical assumptions valid?

Accessibility — The passage of needed legislation (political feasibility)
was noted with little difficulty. Some researchers found comments regarding
legal feasibility and unrealistic commitments and assumptions, mostly in me-
dia sources quoting parties. However, such perceptions likely reflect the
party’s specific perspective and do not shed light on the actual legal feasibility
or realism of the agreement. No researcher found “unrealistic symbolic com-
mitments” and most did not find material addressing scientific and technical
assumptions or the ability of parties to justify the agreement to their constitu-
ents.

Reliability — Given the difficulty of obtaining some of the information
requested, many of these items are difficult to verify from diverse perspec-
tives and may be more influenced by spurious factors such as researcher’s
personal knowledge and connections.

Validity — Legislation being passed, as a measure of political feasibility,
applies to Outcomes that are court rulings, administrative actions and negoti-
ated agreements. It also could apply to legislative agreements that need
amendments in order for implementation to move forward (as in the Edwards
Aquifer case).

Legal feasibility cannot be accurately measured by citing parties’ opinions
on the matter. However, citations from the Outcome itself that address consis-
tency with existing laws are useful. This question does not apply to court rul-
ings as well as it does to other types of Outcomes.

The indicator of representativeness of a monitoring/ implementation team
was not easily addressed due to lack of information on such a team (or its
non-existence) and the fact that representativeness is a matter of perception,
to some degree. Important first questions should be whether a team has been
assembled and its composition.

Indicators asking about unrealistic commitments in the Outcome aim at an
important issue of “realism” and implementability but proved very difficult to
assess.

Timing for Measurement — While some indicators of feasibility can be
assessed through reviewing the Outcome itself when it emerges, most feasibil-
ity issues will best be assessed during and after implementation.

Evaluating Criteria for Success

H. Public Acceptability

259

Public acceptability assesses whether the agreement was acceptable to the
public and political leaders.

Accessibility — Researchers generally did not find material on public per-
ceptions regarding the agreement and cited panics’ reactions, primarily from
media, instead.

Reliability — Given the difficulty of obtaining some of the information
requested, many of these items are difficult to verify from diverse perspec-
tives.

Validity — The acceptability of the Outcome to a larger public seems a
valid indicator of Outcome Quality, but proved to be difficult to operational-
ize.

Timing for Measurement — For those items that researchers were able to
find information on, most are best assessed around the time the agreement is
announced.

IV. RELATIONSHIP OF PARTIES TO OUTCOME

Criteria in this category focus on how parties react and relate to the Out-
come, as well as how the Outcome itself provides structure for the parties’
future relationships.

A. Satisfaction/Fairness — As Assessed by Parties

Satisfaction/fairness as assessed by parties assesses parties’ satisfaction
with the Outcome and their perceptions of its fairness, either expressed
overtly or through behavior, such as a refusal to sign.

Evaluation

Accessibility — Media sources, including wire services, were readily ac-
cessible for most cases. Researchers also drew on panics’ newsletters, web-
sites, and other promotional materials. Some parties had commissioned re-
ports. Secondary and scholarly sources that had analyzed a few specific case
studies also were drawn upon.

Reliability — In general, the reliability level for this criterion should be
high. Potential threats to reliability (and therefore validity) arise in cases
where research on this criterion is shallow and not complete across parties, or
in cases where distinct Outcomes (e.g., a court ruling and a subsequent im-
plementation agreement) are confounded in the reporting of expressions of

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satisfaction. In the latter case, each distinct Outcome needs to be analyzed
separately.

Validity — As operationalized, this seems to be a useful measurement of
parties’ satisfaction and perceptions of Outcome fairness. Expressions of sat-
isfaction from parties’ representatives in the media or other sources are valid
measurements of satisfaction to the degree that spokespeople can actually be
representative. Sources seldom, if ever, give a sense of the range of views
within particular parties. However, the internal diversity of parties may not be
relevant to judging resolution success if representatives have the power to
bind their parties to the Outcome.

Party satisfaction may not be a valid measure of success for a court ruling,
since this is not a goal for the legal process. It may, however, be a valid meas-
ure to apply to the subsequent implementation of that court ruling.

Timing for Measurement — Media sources, if available, were accessible
at any point in time. Certain other forms of summary reports, such as website
summaries or commissioned reports, would only be available after enough
time had passed to assemble them. Therefore, this criterion may best be
measured after such documents have been created, unless researchers plan to
interview parties directly.

B. Compliance with Outcome Over Time

Agreements, rulings and legislation compel parties to engage in certain
behaviors. Compliance with Outcome Over Time assesses whether parties did
indeed act as prescribed by the Outcome. Indicators include any subsequent
litigation initiated or threatened in order to bring a party into compliance, the
subsequent renewal of mediation or negotiations due to perceived noncompli-
ance, records of compliance kept by any monitoring entity, and the inclusion
of any provisions in the Outcome for verifying compliance (procedures,
mechanisms, entities).

Evaluation

Accessibility — Information was readily available on the indicators of
compliance. Media sources reported noncompliance and subsequent litigation.
Subsequent litigation and/or other procedures (such as mediation) also were
noted in academic journals and third party reports. Information on provisions
and mechanisms for verifying compliance was detailed in acts and rules,
though missed by some researchers. Some parties had additional summaries
of provisions.

Researchers had difficulty accessing records of regulatory or monitoring
organizations set up to monitor compliance, often because these records had
not yet been accumulated.

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261

Reliability — In general, a high level of reliability can be expected on the
measurement of this criterion, except in cases where researchers were incom-
plete (as in not listing provisions for measuring compliance). In such cases,
presumably other researchers may find additional or different information.
Information on subsequent litigation should be highly reliable.

Validity — These indicators seem to be appropriate operationalizations for
measuring compliance. However, subsequent litigation may not indicate non-
compliance, but rather dissatisfaction with the original settlement. As a meas-
urement of noncompliance, the subsequent litigation considered here should
only be that which was specifically initiated to bring parties into compliance
with the original or modified terms.

Provisions and/or mechanisms for verifying compliance also are useful in-
dicators for this criterion, but case study researchers often did not report these.

Indicators that require some passage of time, such as the monitoring of
commission records, are valid indicators of compliance. However, their use-
fulness can only be judged after enough time has elapsed for such information
to accumulate. In only two cases (Mono Lake and Pyramid Lake) were re-
searchers able to obtain such information. In the latter case, the information
was for only one commission (TROC) and was too complex to analyze given
the scope of resources available for this project.

Further Methodology Notes — Compliance indicators fall into the
chronological categories of immediate, short-term, and long-term. For exam-
ple, immediate indicators of (potential for) compliance would be provisions in
agreements, while short-term indicators would be mechanisms instituted for
measuring compliance (such as water meters in the Pyramid Lake and Ed-
wards Aquifer cases), and long-term indicators would include results of moni-
toring compliance over time.

Timing for Measurement — The inclusion of provisions and/or mecha-
nisms for verifying compliance can be assessed as soon as the Outcome is
available. Subsequent litigation may occur shortly after an Outcome is
achieved, or later. Records of regulatory or monitoring organizations, or other
records kept to verify compliance, can only be assessed after enough time has
passed for those organizations and records to become established.

C. Flexibility

While no Outcomes can be written to anticipate all future contingencies,
they can be designed to be responsive and flexible. Flexibility assesses an
Outcome’s ability to adapt to changing conditions. Indicators assess details of
any subsequent modifications, the process specified in the original Outcome
for modification (if any), and any unachieved but desired modifications, par-
ticularly if the barrier to modification was in the Outcome itself.

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Evaluation

Accessibility — Information on modification procedures was easily acces-
sible in the text of negotiated agreements, rulings, or legislation. Information
on subsequent modifications, or attempted modifications, was available in the
media, and in parties’ papers, newsletters, and websites. It was also found, in
some cases, in board minutes or commission reports. Any barriers to modifi-
cation contained in the language or structure of Outcomes were never specifi-
cally noted.

Reliability — The reliability level of this criterion should be high, espe-
cially when assessed through examining the modification procedures speci-
fied in the Outcomes. In this case, the presence or absence of such procedures
should be easily verifiable by others, although our researchers relied only on
the primary sources (the agreement or Outcome itself). The quality of these
procedures was not assessed directly by researchers, in part because this
would result in significantly less reliability (unless additional criteria for
“good modification procedures” were established). Researchers did not note
comments by others (e.g., parties) on the quality of such procedures.

The reliability of information on the indicator of modifications should be
high and tended to be verified in more than one source. Information on modi-
fications that were desired (by at least one party) may be less replicable. In
some cases, modifications that were sought but not obtained were discovered
through a researcher’s particular extensive knowledge of the case and the par-
ties (Edwards Aquifer and Mono Lake), rather than from easily accessible
information.

Validity — Flexibility as measured by the inclusion of modification pro-
cedures is really a measure of Outcome Quality itself, rather than a measure
of the parties’ relationships to the Outcome. As such, it could be measured
immediately after concluding the Outcome. The other indicators of flexibility
that were analyzed in this section remain as long-term indicators of Outcome
flexibility.

The validity of the indicators themselves for measuring the criterion of
flexibility can also be assessed. The first two indicators, evidence of modifica-
tion and existence of modification procedures, have high levels of validity.
The last indicator, modifications desired but not achieved, does not necessar-
ily reflect (a lack of) flexibility. In nearly any conflict, some parties will de-
sire to modify the outcome if it does not fully meet their needs. The absence
of continuing pressures for modification may indicate that the dispute has
been satisfactorily laid to rest. In such cases, the absence of modifications
does not indicate inflexibility.

Conceptually, flexibility can be a euphemism for ambiguity that leads to
future conflict if it leaves issues to some future decision-making process that
is not transparent and/or not perceived by parties as procedurally just.

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263

Timing for Measurement — The modification of an Outcome itself can
be assessed any time after requests to modify an Outcome arise. The presence
of modification procedures in the Outcome can be assessed immediately upon
achieving the Outcome. The assessment of the original spirit of the flexibility
criterion (if the Outcome can be adjusted to changing conditions) can only be
done after time has passed and conditions have changed, creating a desire
among parties for subsequent (rather than immediate) modification.

D. Stability/Durability

Stability/durability addresses the ability of the Outcome to persist over
time. It includes two types of indicators: those that look at characteristics in
the Outcome and in any accompanying framework for implementation that
may affect stability over time; and indicators that actually note evidence of
stability or instability over time. Indicators in the first category include stabil-
ity-promoting incentives in the Outcome such as penalties, deadlines, or
benchmarks, identification of a party (or parties) as responsible for implemen-
tation, and provision of an ongoing forum for future conflict resolution. Indi-
cators in the second category (noting actual instability) include non-
compliance, resumed litigation or introduction of counteracting legislation,
expressions of hostility, communication breakdown, and coercive behavior.

Evaluation

Accessibility — Judging from the varied degrees of success in assessing
this criterion, it appears to be difficult to address. Most researchers who ad-
dressed this criterion drew upon the Outcome itself to address the predictive
indicators (i.e., provisions for future stability), while drawing on media
sources for indications of subsequent hostility, non-compliance and break-
down. It was often too soon to address these latter indicators. Many of the
predictive indicators consist of implementation guidelines, and perhaps their
inaccessibility indicates a frequent lack of implementation guidelines in
agreements. One researcher (Pyramid Lake) actually found much information
on implementation guidelines in U.S. Senate subcommittee testimony and
addenda, as well as in agency press releases and third party sources.

Reliability — Because the range of reporting information for this criterion
is so varied in the case study analyses, the reliability of the assessment of this
criterion also varies. Where the information gathering was thorough, the reli-
ability can be high. If the information gathering is inadequate, different re-
searchers may find different answers and develop different assessments.

Validity — Many of the questions in this section involve implementation.
It is unclear how valid implementation questions of court rulings can be since

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they are not designed to spell out future implementation, but rather to rule on
questions of law.

The short-term or immediate indicators (incentives, implementation, re-
sponsibility, availability of a conflict resolution forum) may be less valid as
measurements of stability since they are really only predictors of future stabil-
ity. As such, they are also relevant to the category “Outcome Quality.” The
indicators of instability over time may be more valid at addressing the spirit of
stability, although these can primarily be indicators of escalation, which, it
can be argued, is conceptually separate from instability. For many of our
cases, it was too early to measure these.

Measurements of long-term stability should be developed, in addition to
measurements of instability. Such “positive” concepts (stability, peace) are
hai'd to measure as anything other than the ‘absence’ of something else (insta-
bility, war, conflict, etc.).

Timing for Measurement — Immediate and predictive indicators can be
measured at the completion of the Outcome. Long-term indicators of stability
require some time before assessment.

V. RELATIONSHIP BETWEEN PARTIES

This category includes criteria that evaluate the relationship between the
parties in the context of the conflict and the Outcome that was produced
through the conflict resolution process.

A. Reduction in Conflict and Hostility

A common measure of improvement in conflictual relationships is a reduc-
tion in hostility. This criterion attempts to capture a sense of whether the con-
flict is escalating or not, either in actions, rhetoric or tone of communication.
Also included as indicators are various factors taken from the conflict litera-
ture on escalation , 4 such as the presence of various hostile tactics, pervasive-
ness of tension between groups (generality of issues), and the possibility for
nonalignment (indicates level of polarization).

Evaluation

Accessibility — Information on this criterion seemed accessible in the me-
dia, though it was sometimes sparse. Researchers usually cited brief informa-
tion and did not use multiple sources (with notable exceptions, see Lower
Colorado River and Pyramid Lake), perhaps because they were not readily
available. It appears that good relations do not “make news” like hostility
does. Most researchers relied on media sources. Parties’ websites or newslet-

Evaluating Criteria for Success

265

ters, public relations documents, congressional testimony, and secondary
source reports on the conflict were also useful. Some also inferred relations
from subsequent litigation behavior or used inside knowledge from their fa-
miliarity with parties, although these strategies raise reliability issues.

Reliability — When researchers used multiple publicly available sources,
reliability was high. However, most researchers did not use multiple sources
for this criterion, relying instead on the impressions of one party, or one
party’s information on other parties. Where the sources were not clear or ex-
tensive, the reliability is only moderate. Others may find contrary evidence of
escalation or de-escalation. The nature of the information itself is often con-
tradictory, which will also reduce the reliability of the assessment. The most
helpful assessments were those in which researchers also presented informa-
tion on a baseline from the past for comparison (Lower Colorado River).

Validity — The indicators are valid measures of levels and changes in hos-
tility and of changes in conflict when “conflict” means hostility, antagonism,
or adversariness. As indicated above, the measures are most valid when ex-
plicitly compared before and after the Outcome. In one case (Mono Lake),
media headlines were tracked as an indicator. The validity of this may be
questionable if the press emphasizes the perspective of only one or two of the
parties instead of reporting many different parties’ impressions.

Further Methodology Notes — The indicator “public initiatives, legisla-
tive actions” was originally included in the Guidebook to capture possible
subsequent hostile tactics by parties who were unhappy with the agreement.
No evidence of this was found in these cases; however, some researchers did
use examples of positive public initiatives (such as joint projects) as evidence
of de-escalation and a collaborative tone among the parties.

Timing for Measurement — This criterion is measurable any time after
the Outcome is announced. However, it is advisable to measure before or dur-
ing the conflict resolution process in order to have a baseline. It is often diffi-
cult to assess whether or not the conflict is escalating immediately upon the
reaching of an Outcome (such an assessment will likely be mixed), so it may
be useful to wait for some time to pass.

B. Improved Relations

Improved relations seeks to capture the changes in the way parties see and
relate to one another that may reflect the essence of a successful resolution.
To note change, one must first note the nature of the original relationship as a
baseline for comparison. Indicators of change include discussions of the rela-
tionship itself, as well as the tone of communication among the parties (hos-
tile, conciliatory), the effort parties make to protect themselves, and their
sense of trust as indicated by the necessity or lack of enforcement clauses or
other formalities.

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Evaluation

Accessibility — Information for this criterion was readily available in me-
dia sources, and in fact there was much in the media to address the various
indicators. In addition, some researchers reported on correspondence between
the parties, speeches made by party representatives, party Internet sites, party
promotional materials, a report by a third party, and requirements specified in
the agreements themselves.

Reliability — Reliability on this criterion will be moderate when com-
pared with other criteria. Because of the subjective nature of relationship as-
sessment, the reliability of that assessment will be linked to researcher’s thor-
oughness in triangulating and verifying information. The varied information
for this criterion makes it highly dependent on the type and number of sources
consulted. When many sources are consulted, reliability may be high (as in
the Lower Colorado River, Pyramid Lake, and Salt River), but this was not
done for several cases analyzed for this project. Sources sometimes were not
cited, implying that information came from researchers’ inferences. In addi-
tion, Guidebook indicators for this criterion were not as well developed as
others and were left more open to interpretation.

Validity — The criterion “Change in Relationship Quality” or “Improved
Relations” should be a highly valid measure of the general category of rela-
tionship quality. Criteria indicators themselves are valid inherently but not
reliably assessable, which may ultimately reduce their validity. These indica-
tors are a solid beginning but are not complete, and validity would increase
with more development . 5 For example, trust was seldom found as operational-
ized (lack of enforcement mechanisms, etc.). However, researchers found
other expressions in the media from the parties that indicated something many
would call trust. In these cases, trust (or lack thereof) was found in the tone of
and discussion of the question, “will parties follow through?”

Further Methodology Notes — While the indicators specified in the
Guidebook for this criterion may have been incomplete, researchers surpris-
ingly were able to find direct discussion by parties of “relationship change”
itself as a theme.

As noted above, trust was rarely found as operationalized, although it was
sometimes inferred. One researcher suggested that trust is implied when par-
ties are continually working together. Other measures might include the mu-
tual perceived credibility of parties, “acting in a trustworthy manner,” and
perceptions of good faith in seeking solutions . 6 Building on the legal defini-
tion of this last point, “acting in good faith,” the operationalization could in-
clude the sense that what someone says they are doing is not different from
what they are doing. A related dimension, noted earlier, is a sense that a party
will follow through on what they say is important. An example of this came
from the Lower Colorado River case, when California had to demonstrate to

Evaluating Criteria for Success

267

the other parties that it could curtail its water consumption. In the Pyramid
Lake case, other parties wanted to see that Nevadans actually would accept a
state sales tax to pay for water system improvements necessary to implement
the negotiated agreement.

Timing for Measurement — If indicators assess information in the
agreement itself or some result of the agreement process, they could be meas-
ured immediately. Long term indicators are not developed, but would need the
passage of time.

C. Cognitive and Affective Shift

The cognitive shift criterion sought to capture evidence of the phenomenon
that many practitioners (and parties) note of a shift in parties’ framing of the
conflict and/or relationship. Indicators include the ways parties referred to one
another and they way they described or explained the other parties’ behavior
(pre- and post-Outcome). Building on some of the literature from family sys-
tems theories, the indicators also include questions for narrative analysis of
the way “stories” are told about the conflict - do narratives change in their
description of causality, interactions, values, etc?

Evaluation

Accessibility — At first glance, it appeal's that assessing cognitive shift
might require a detailed reading of reports on parties’ statements during and
after the Outcome. Many of our researchers gathered no information on this
criterion, perhaps because of the depth of research requested. However, some
researchers were able to find direct statements by the parties themselves on
the presence of this phenomenon. Though operationalization was difficult, it
seemed to have the character of “you know it when you see it” so parties, and
thus researchers, reported on it. Information was found in internal party
documents, newsletters, commissioned reports, and fundraising brochures. It
was also reported in the media, where it was noted when the process and the
relationship were perceived as truly representing a new way of doing things
and as a shift from past procedures and relationships. Interestingly, it typically
took the form of parties expressing changes within themselves, rather than
noting changes in others.

Reliability — Reliability for this criterion may be fairly high, though it
clearly could be improved through verification from multiple sources. It ap-
peal's to have a “you know it when you see it” quality. One could legitimately
argue that even if only one party sees a cognitive shift, this itself represents an
important shift. In other words, this is not a criterion that requires verification
across parties and sources, as it is not a characteristic of the agreement or the

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relationship, but of individual parties. It is often a characteristic of self-
realization.

Validity — This criterion should be highly valid as a measure of relation-
ship quality. However, the indicators in the Guidebook used for operationali-
zation of this criterion and based on relevant literature may be of questionable
validity. They were at least very difficult to use in practice.

Timing for Measurement — This criterion can be measured upon comple-
tion of the agreement, and possibly even during the resolution process if it
refers to perceptions of a new process and a new relationship. Cognitive and
affective shift may be important for catalyzing an agreement.

D. Ability to Resolve Subsequent Disputes

Ability to resolve subsequent disputes addresses the degree to which the
relationship between the parties contains the capacity for handling future con-
flict. Indicators include evidence that problems are handled constructively,
that an ongoing relationship has developed which allows future concerns to be
addressed, and possibly the emergence of an ongoing forum for conflict man-
agement.

Evaluation

Accessibility — Though it could be deduced from information in common
sources, such as the media and party newsletters, this criterion appeared to
require a bit more detective or inferential skill on the paid of the researcher.
That is, the indicators proposed in the Guidebook (and also added by re-
searchers) required them to find evidence that the parties constructively han-
dled subsequent issues. Researchers often inferred this from the way the par-
ties addressed the achievement of an Outcome, often noted in the media, or
from processes written into the Outcomes themselves. Sometimes it was in-
ferred from subsequent (negative) actions. Parties’ press releases, public
speeches, and third party reports were also used to assess this criterion. Trian-
gulation and verification of this criterion needs to be stressed to researchers,
precisely because of the temptation to rely solely on speculation.

Reliability — Because this criterion often required inference from the re-
searcher, its reliability was compromised accordingly because inference proc-
esses are less replicable across researchers. For the few cases in which re-
searchers relied less on inference and instead identified the variety of possible
mixed indicators for this criterion (Mono Lake, Pyramid Lake), one can feel
more secure in claiming high reliability for the assessment produced.

Reliability is less likely because the assessment often was not based on in-
formation on parties’ “track record” per se, but rather it was inferred from
agreement mechanisms without also assessing post-agreement follow-up.

Evaluating Criteria for Success

269

Validity — In principle, this criterion appeals to be a critical component of
assessing the quality of the relationship between the parties. Unless parties
interact constructively, future conflicts will once again derail relations, and
even the current Outcome’s implementation may be threatened.

For many of the cases, however, it was too early to assess this criterion di-
rectly, so inferences were made from indicators (e.g., agreement wording) that
may be less valid in representing future ability to resolve disputes.

Timing for Measurement — By definition, “future” disputes have not yet
occurred, so they must be inferred and predicted from current information.
These inferences could be made from information available immediately upon
agreement, or even earlier, during the process of reaching the agreement. If,
however, the interest is in assessing parties’ “track record” of subsequent dis-
pute resolution, it must be measured after some time has passed.

CONCLUSIONS

As a result of systematically evaluating the criteria through their applica-
tion to case studies, we have learned several things about the criteria them-
selves as well as about our framework methodology and procedures for evalu-
ating success in ECR cases. We have gained insight on how to better evaluate
the accessibility, reliability, and validity of the success criteria, and on the
best timing for measuring the criteria. We also identified specific challenges
encountered in operationalizing some of the criteria, and we discussed strate-
gies to address these measurement challenges.

We confirmed one of our initial research hypotheses: that success criteria
vary in the ease with which they can be assessed. Success criteria may exist
‘in theory’ as part of a conceptual definition of success, and yet be difficult to
assess in practice. If a criterion cannot be practically and reliably assessed, it
may be unrealistic to consider it as paid of one’s operating definition of suc-
cess. One example of this difficulty was the criterion “Public Acceptability.”
Our literature review suggested that one widely held perspective on success in
ECR is that not only the stakeholders must consider the Outcome acceptable,
but there must be public acceptance as well . 7 However, researchers in our
study found little or no information on reactions to the Outcome beyond the
involved parties themselves.

Baselines were another area where difficulties were encountered. Implicit
in many success criteria is change in the dimension itself from some baseline
state (improved relations, reduced hostility). We learned that such criteria re-
quire a clear definition of the baseline against which change is to be meas-
ured, in order to be effectively applied to evaluating cases.

With respect to compliance, we observed that it is necessary to identify a
baseline performance standard in the Outcome so that compliance can be

270

Chapter Nine

monitored. It became clear in our evaluation of the case analyses that re-
searchers need to be made more aware of the notion of baselines and perform-
ance standards, as well as the importance of identifying them correctly.

The use of multiple sources, or triangulation, was an issue of both accessi-
bility and reliability, and it relates to researcher thoroughness. For many of
the criteria, it was essential to consult multiple sources to balance the subjec-
tive nature of the data. However, either multiple sources were often not avail-
able or the effort was not expended to consult multiple sources. A lack of tri-
angulation produces criteria assessments that are questionable in their reliabil-
ity and validity.

In a similar vein, when diverse sources were not consulted (either due to
inaccessibility or low effort), we found an overemphasis, and sometimes a
sole reliance on, media sources for certain criteria. Triangulation of types of
data, for example, also including parties’ internal publications, external re-
views, website information, etc., would be desirable and would improve reli-
ability and validity. Access to different types of information varied greatly
across cases and criteria. Our analysis revealed the emergence of the internet
as a powerful tool for both researchers and parties in furthering their agendas
and accessing information. We found local access to information important
for researchers, particularly in locating information that was generated before
the internet was widely used or available.

Moving specifically to the topic of criteria reliability, we found that re-
searchers with specialized knowledge presented both advantages and disad-
vantages. Researchers with specific background knowledge, either in a field
such as economics or law, or with prior experience in environmental conflict
resolution, had extra access to information and/or better strategies for locating
and understanding information. However, they also produced information that
would be unlikely to be replicated by other researchers with less extensive
backgrounds. Thus, the reliability question of producing similar results across
assessments becomes a tradeoff with the quality and thoroughness of the re-
search conducted.

Some criteria were less valid as indicators of success for certain conflict
resolution processes because these processes did not have these criteria as
goals. For example, litigation does not usually attempt to be inclusive of all
stakeholders in its process, and private stakeholder negotiations may not seek
public participation. As introduced earlier, Table 9.1 summarizes our evalua-
tion of the accessibility, reliability and validity of the criteria.

One of the more important and useful findings of this research was the
identification of strategic times for assessment, which vary with criteria. As
introduced earlier, Table 9.2 summarizes our findings on the best times during
the lifecycle of an ECR process to obtain the information needed to opera-
tionalize a criterion and apply it to a specific case. As outlined above, our
analysis suggested that many of the criteria should be assessed at several

Evaluating Criteria for Success

111

points in time over the course of a conflict: (1) baseline, before the resolution
process, (2) during the resolution process, (3) immediately upon achieving the
Outcome, (4) short-term after the Outcome is reached, and finally, (5) long-
term after the Outcome has been achieved and implemented (see Figure 9.1
above). Most criteria cannot be assessed at every stage. Knowing which crite-
ria to assess at which stage in the ECR process can make evaluation easier.
Any success criteria that involve measuring a change will require a baseline
against which to gauge any movement.

The exercise of evaluating the accessibility, reliability and validity of each
success criterion proved valuable. We hope that the findings in this chapter
will be helpful in future efforts to evaluate ECR. Some of our findings may be
influenced by the nature of our cases studies - western U.S. water conflicts.
Application of the success criteria to other classes of environmental disputes
would yield additional insights on the usefulness and applicability of the crite-
ria. Many of our methodological findings from evaluating the criteria have
been incorporated into a revised and updated Guidebook (Appendix A), which
contains more complete and explicit instructions to researchers.

272

Chapter Nine

Table 9. 1 Assessing the Criteria

Criteria

Accessibility

Reliability

Validity

1. OUTCOME REACHED

A. Unanimity or Consensus

Mixed

High

Mix./Mod.

B. Verifiable Consensus on Terms

High

Mixed

C. Publicized media event around
reaching agreement

Mod.

High

Mod.

D. Ratification

Low

Mod.

High

II. PROCESS QUALITY

A. Procedurally Just

Low

Mixed

High*

B. Procedurally Accessible and Inclusive

Mixed

Mod.

Mixed

C. Reasonable Process Costs

Low

Moderate

High*

III. OUTCOME QUALITY

A. Costs of Implementing Outcome

Low

Mod.

Mixed

B. Sustainability

1 . Financial Sustainability

High

Mod.”

2. Cultural Sustainability

High

Mod./High”

3. Environmental Sustainability

High

Mod.

Mod”

C. Clarity of Agreement

Mod.

Mixed

Mod.”

D. Feasibility/Realism

Low

Mod./High

E. Public Acceptability

Low

Mod./High

*lf researched well

'Need some passage of time

Evaluating Criteria for Success 273

Table 9.1 Assessing the Criteria, continued

Criteria

Accessibility

Reliability

Validity

IV. RELATIONSHIP OF PARTIES TO OUTCOME

A. Satisfaction/Faimess - As assessed by
parties

High

Mixed

B. Compliance with Agreement Over
Time

High

C. Flexibility

High

D. Stability/Durability

Low

Mod./Mixed

Mixed

V. RELATIONSHIP BETWEEN PARTIES

A. Reduction in Conflict and Hostility

High

Mod./High

High

B. Changes in Relationship
Quality/Improved Relations

High

Mod./Mixed

High*

C. Cognitive Shift

Mixed

High

High/Mod.

D. Ability to Resolve Future Disputes

Low

Mod./Low

Mod.**

*lf researched well

'Need some passage of time

274

Chapter Nine

Table 9.2. Timing over Lifecycle of ECR Process for Assessment of Criteria

I. OUTCOME REACHED

A. Unanimity

B. Verifiable Consensus on Terms

C. Publicized media event around
reaching agreement

D. Ratification

II. PROCESS QUALITY

A. Procedu rally Just

B. Procedural^ Accessible and
Inclusive

C. Reasonable Process Costs

. OUTCOME QUALITY

Baseline

Before

ECR

Process

During When
ECR Outcome

Process Achieved

A. Cost Effectiveness

B. Sustainability

1. Financial Sustainability

2. Cultural Sustainability/Community
Self Determination

3. Environmental Sustainability

C. Clarity of Agreement

D. Feasibility, Realism

E. Public Acceptability

Key: X= Best time to Measure

0 = Good time to measure

Evaluating Criteria for Success 275

Table 9.2. Timing over Lifecycle of ECR Process for Assessment of Criteria, continued

Criteria

Baseline

Before

ECR

Process

During ECR
Process

When

Outcome

Achieved

Long

Term

IV. RELATIONSHIP OF PARTIES TO OUTCOME

A. Satisfaction/Faimess - As
assessed by parties

B. Compliance with Agreement
Over Time

■9

V. RELATIONSHIP BETWEEN PARTIES

A. Reduction in Conflict and
Hostility

B. Changes in Relationship
Quality (e.g. trust)

C. Cognitive Shift

D. Ability to Resolve Future
Disputes

Key: X= Best time to Measure

0 = Good time to measure

276

Chapter Nine

NOTES

1 For the last criterion in the original project case analyses, "Transformation,” information was
collected for only two cases. Thus this criterion was not able to be evaluated.

“ For details on the specific indicators used to operationalize each criterion, please consult the
Guidebook in Appendix A.

3 The relationship between benefits and costs is examined under the criterion Perceived Eco-

nomic Efficiency, which was subsequently added to the Guidebook (see Appendix A). Be-
cause this criterion was not part of the comparative case study, it is not analyzed here.

4 Jeffrey Z. Rubin, Dean G. Pruitt, and Sung Hee Kim, Social Conflict: Escalation, Stalemate,

and Settlement, 2 nd ed. (New York: Colin McGraw Hill, 1994).

5 See also Tamra Pearson d’Estree, "Achievement of Relationship Change,” in The Promise

and Performance of Environmental Conflict Resolution, eds. Rosemary O’Leary and Lisa B.
Bingham, 1 1 1-128 (Washington, DC: Resources for the Future, 2003).

6 Gail Bingham, Resolving Environmental Disputes: A Decade of Experience (Washington,

DC: The Conservation Foundation, 1986).

7 Christopher W. Moore, The Mediation Process: Practiced Strategies For Resolving Conflict

(San Francisco, CA: Jossey-Bass, 1987).

Chapter Ten

REFLECTIONS ON RESOLVING WATER
CONFLICTS

The eye sees not itself
But by reflection.

William Shakespeare (Brutus in Julius Caesar)

REVIEW OF THE BOOK

In Chapter 1, we introduced the benefits of developing a systematic
framework for evaluating environmental conflict resolution. We created this
framework with encouragement from conflict resolution practitioners, elected
officials, environmental advocates, public agencies, researchers and university
instructors. We hope the book helps to craft a collective understanding of ef-
fective strategies to address environmental conflicts. Chapter 2 demonstrates
the various fields of inquiry and literature (from economics to family therapy
to social psychology) upon which we draw to identify criteria for evaluating
environmental conflicts. Many of the twenty-eight criteria are not new, but
have been applied in other evaluation contexts. Most of them have not previ-
ously been applied to environmental conflicts nor to comparisons across
cases. The criteria are integrated into a cohesive framework for evaluating
environmental conflict resolution. We go beyond the existing body of work
by taking multiple success definitions - criteria - organizing and elaborating

278

Chapter Ten

them within conceptual categories, operationalizing those criteria and then
applying them to actual cases. While other lists of criteria exist as well as and
many other case studies of conflicts, a full set of criteria have never before
been brought together and applied to multiple cases. All of the criteria are not
equally applicable to every type of conflict. Our intent was to create a com-
prehensive menu from which readers could choose the subsets that best suit
their own cases and interests. The comprehensive menu itself presents a dis-
cussion list of the multiple and often conflicting goals desired in the resolu-
tion of water conflicts.

Chapter 3 summarizes the eight cases and our methodology for evaluating
them in a consistent manner. Four of the eight cases are presented in detail in
Chapters 4-7. Chapter 8 highlights patterns across the cases and Chapter 9
directly assesses the validity, accessibility and reliability of the success crite-
ria themselves.

Here, in our concluding chapter, we glean last insights from the case
evaluations for: a) innovative problem solving in environmental conflicts, b)
questions needing further research and c) the interplay between public poli-
cies and successful environmental conflict resolution.

INNOVATIVE PROBLEM SOLVING

One of the virtues of accumulating case studies is that these cases can pro-
vide examples of challenges well-solved. Our detailed analysis of the cases
revealed some interesting practical approaches to achieving various elements
of success. We highlight these approaches below, organized by success crite-
rion.

Cost-Effective Implementation

In the Lower Colorado River case, we find elements that both violate and
encourage cost-effectiveness. Arizona subsidizes the agricultural use of CAP
water as part of its strategy for managing its Colorado River water within the
federal and interstate management framework for the river. Such subsidies
generally go against the idea of cost-effectiveness by making water cheaper to
farmers, thus undermining incentives for conservation and more careful man-
agement; subsidized prices also may obstruct voluntary transfers of water to
urban or environmental uses.

However, the rules adopted in this case do encourage a more cost-effective
allocation of water between the states by providing mechanisms for interstate
water exchanges. The rules explicitly state that U.S. taxpayers will not subsi-
dize any water banking and exchanges between the parties. The cost-effective

Reflections on Resolving Water Conflicts

279

management of water was specifically noted as a goal of the federal adminis-
trative rules for the Lower Colorado River.

Financial F easibility/Sustainability

Among the cases, many examples exist of innovative approaches to this
criterion. In the Edwards Aquifer case, the agreement mandates that the agri-
cultural pumping fees be limited to one-fifth of urban fees given agriculture's
limited financial resources. This clearly makes the Outcome more affordable
to farmers, although it also may prevent them from facing the real economic
cost of water and may shift those costs over to urban water users. The Ed-
wards Aquifer Outcome specifically requires that the costs be borne by aqui-
fer users with no taxpayer subsidy, and that compensation must be provided
for the “taking” of any private property. In order to make its terms more pal-
atable, the legislation defers the most severe cuts in groundwater pumping to
future years. However, water providers are required to establish pricing struc-
tures that encourage conservation. Loans are available to promote conserva-
tion and the reuse of wastewater, while cities propose to assist farmers with
agricultural conservation costs.

The Lower Colorado River case provides examples of water leases be-
tween tribes and cities, and it mandates greater water re-use. The Rules spe-
cifically require the parties to consider financial impacts by limiting unfunded
mandates imposed on all non-federal governments and private parties to less
than $100 million per year.

In the Mono Lake case, state and federal agencies provided the funds to
assist the LADWP in replacing water supplies it can no longer take from the
Mono Lake Basin. Cost estimates were developed for conservation and water
reclamation programs that will provide replacement water and replace the hy-
dropower that will no longer be generated along the aqueduct. The Board spe-
cifically noted that the costs of the replacement water and power were “rea-
sonable,” considering the benefits of environmental restoration and compara-
ble water costs elsewhere in urban Southern California.

In order to satisfy the Pecos River agreement, New Mexico sells bonds to
raise funds for acquiring water rights. In the Pyramid Lake case, portions of
the agreement specify how much money the state and federal authorities must
contribute to protect the wetlands and fisheries, to the tribal economic devel-
opment fund and towards municipal water conservation measures. The
Snowmass Creek case study noted that public entities could cover their costs
through fee collection mechanisms.

The Salt River case also devotes specific attention to this criterion. The
agreement specifies: a) water users must share the costs of various infrastruc-
ture and settlement funds, as well as payment of any compensation (including
debt forgiveness) for water and water storage capacity; and b) substitutions of

280

Chapter Ten

renewable water use (effluent and surface water) for groundwater pumping.
The terms of water leases from the tribe to the cities are also specified.

Looking at the body of cases as a whole, several of the non-litigation cases
(Edwards Aquifer, Mono Lake, Pyramid Lake, Salt River) explicitly provide
loans to specific parties to assist with implementation costs. These cases also
establish specific mechanisms to raise funds to cover costs, such as increased
water rates, water use fees, the issuing of public bonds and contributions from
the federal budget. Water leases and water acquisitions were authorized
through legislation, administrative rule making and negotiated agreements in
several cases to make more efficient use of regional water sources (Edwards
Aquifer, Mono Lake, Pyramid Lake, Pecos River and Salt River).

A couple of cases (Edwards Aquifer and Lower Colorado River) specifi-
cally prohibited or limited any unfunded mandates. Ability to pay issues were
addressed in several cases (Edwards Aquifer, Mono Lake and Snowmass
Creek). Lor the implementation of the Edwards Aquifer and Pyramid Lake
agreements, water pricing reforms were required to encourage more efficient
water use.

Cultural Sustainability/Community Self-Determination

Each case placed different degrees of emphasis on this criterion. Tribal
concerns about cultural resources are most notable in the Mono Lake, Salt
River and Pyramid Lake cases. Decision-makers attempted to address these
concerns in the agreements and administrative rules, and federal laws in-
tended to protect cultural resources played a key role. The Mono Lake agree-
ment requires the development of a plan to protect all known (and yet to be
discovered) cultural resources and to provide access to traditional native uses
of resources around the lake. The negotiated agreements in the Pyramid Lake
and Salt River cases attempted to address tribal concerns about their sover-
eignty.

Many cases involve tradeoffs between urban areas and water for agricul-
ture. The Edwards Aquifer, Lower Colorado River, Mono Lake, Pyramid
Lake and Salt River cases all involved a competition between farms and cities
for limited regional water supplies. Those cases provide mechanisms to trans-
fer water from irrigation use to urban when farmers voluntarily agree to sell or
lease their water. However, the voluntary nature of these transitions has not
eased concerns about the impacts they may have on farming and farm com-
munities. Tension between rural and urban ways of life, and fears that rural
culture will be diminished, permeate many western U.S. water conflicts.

Reflections on Resolving Water Conflicts

Environmental Sustainability

281

This criterion is central to many of the cases. The Edwards Aquifer
agreement specifically addresses water needs for drought and endangered
species. In response, urban areas committed themselves to water conservation
and re-use in order to reduce groundwater pumping. The requirements of the
Mono Lake ruling are tied to maintaining environmentally acceptable lake
levels, which addresses drought effects on the ecosystem. The Pyramid Lake
agreement mandates urban water conservation and specifically considers en-
dangered fish and wetland water needs. Environmental organizations and
agencies have been involved throughout the implementation of the Tmckee-
Carson Basin Settlement. The settlement contains specific provisions dealing
with drought and environmental groups and agencies have been buying water
rights to provide water for environmental needs.

In the Salt River case, environmental sustainability was promoted by
switching water users from local pumped groundwater (which is being de-
pleted) to imported renewable surface water supplies. However, it requires a
large amount of electric power to convey the imported water to central Ari-
zona, which raises other environmental concerns such as air quality impacts
from power generation. During drought, groundwater reserves act as a back-
up water supply. Limits on agricultural groundwater use are included in the
Salt River agreement, along with provisions to reduce groundwater overdraft
and deal with unplanned shortages of Central Arizona Project (CAP) water.
The agreement attempted to remain consistent with the Arizona water man-
agement, which limits groundwater overdraft. The follow-up negotiated
agreement in the Snowmass case makes specific considerations for dry, nor-
mal and wet years.

Overall throughout the cases, several provide for cities to acquire water
from irrigators to ensure that they can satisfy urban water needs during
drought. The Mono Lake, Snowmass Creek and Pyramid Lake cases all in-
clude provisions for protecting water-dependent habitat during dry years. The
Salt River case encourages a transition from groundwater overdraft to renew-
able surface water.

Clarity of Outcome

One key factor for this criterion was the establishment of baseline condi-
tions and performance standards. The cases illustrate various strategies to ad-
dress this. The legislation in the Edwards Aquifer case sets clear goals for
groundwater management as well as standards to follow in assigning pumping
rights. In the Edwards Aquifer case, baseline conditions are specific in terms
of who is eligible to apply for a groundwater pumping permit and the basis for

282

Chapter Ten

granting permits. However, the actual process of issuing the permits has not
proved to be as clear-cut, since each party interprets the rules in their favor.

The parties in the Mono Lake case each argued for different lake levels to
serve as the performance standard and the Environmental Impact Report ex-
amined the ecological implications of maintaining different lake levels. The
Mono Lake ruling set explicit standards for maintaining lake levels, as the
negotiated agreement in the Snowmass Creek case did for stream flows. The
courts in the Pyramid Lake case set standards for river flows and these are
incorporated into the negotiated agreement, which also set standards for pro-
viding flows to maintain and restore wetlands. The Pecos River ruling set per-
formance standards for river flows from New Mexico into Texas. Overall,
many different strategies were used to set performance standards for imple-
menting the various Outcomes.

CONTINUING QUESTIONS

Accumulating cases can also highlight both patterns and gaps in our un-
derstanding. The case analyses suggest a number of avenues for further in-
quiry. These are highlighted below, organized by success criterion.

Procedurally Just

At least two future research topics regarding procedural justice emerged.
Negotiations often occur behind closed doors to allow the parties to consider
new ideas without public commitment, so observers may perceive that some
parties and/or views have been excluded, or neglected. In contrast, administra-
tive processes require public comment and allow the expression of multiple
views, lending the impression that they are accessible to all stakeholders.
Only one negotiation case (Salt River) was seen as accommodating to all in-
terests, so it would be interesting to determine why these negotiations were
perceived as more inclusive than others.

The ability of certain parties to unduly influence an Outcome, or percep-
tions of “unequal weight,” was noted in several cases (Edwards Aquifer,
Lower Colorado River implementation. Pyramid Lake, Salt River). It is inter-
esting to note that each case involved multi-party negotiations, in which the
structure presumably invites all parties as equals. Perhaps there is an “as-
sumption” or expectation of equal opportunity in negotiation, an expectation
that is not present in litigation or administrative rulemaking. Therefore, when
this equality does not in fact materialize it may prove to be a source of disillu-
sionment.

Reflections on Resolving Water Conflicts

Procedurally Accessible and Inclusive

283

Several of the cases (Edwards Aquifer, Lower Colorado River, Mono
Lake, Snowmass Creek), included opportunities for public participation, or at
least public “input,” in the decision-making process. The efforts made to no-
tify the public varied widely with each case. Lor our purposes, ‘the public’ is
defined as citizens who may or may not be direct stakeholders. Administrative
actions require public notice and comment, so Administrative Outcomes
(Mono Lake, Lower Colorado River) typically had extensive opportunities for
comment, although the publicity may have been narrow and limited in scope,
(e.g., confined to newspaper announcements and Lederal Register). Though
cases with legislative Outcomes typically featured many hearings and possi-
bly even citizen committees, the case reports suggest that information on
these hearings and meetings was not always widely dispersed (Edwards Aqui-
fer, Pyramid Lake, Salt River, Snowmass Creek).

In general, across cases of all types, public access to information and pub-
lic notice seemed limited. This apparent lack of public notice may stem from
two sources. Lurther research would be necessary to clarify the relative con-
tributions of each. Lirst, there may genuinely have been a lack of public no-
tice. The parties may expend minimal effort in order to conserve resources, or
simply may not consider the many ways that public views could be solicited
and incorporated. Alternatively, the apparent lack of public notice may be
spurious, in that some forms used to notify the public (radio broadcasts, paid
advertisements) are not archived and thus inaccessible at a later time by case
researchers.

A larger research question can be raised about public participation and ac-
cess and its importance to the concept of successful resolution. Cases that
some might regard as successful, with a “quality process,” did not always in-
clude open public processes. Researchers need to consider methods to meas-
ure process quality for confidential and private conflict resolution processes.

Financial F easibility/Sustainability

Based on information from the case studies, it appears that litigation does
not address financial and economic issues in as much depth as legislation,
administrative rules and negotiated agreements. Lurther research would be
useful to compare the thoroughness of different Outcomes and the ramifica-
tions of differing levels of attention to financial and economic matters.

Compliance with Outcome Over Time

Almost every case was missing records of compliance from a monitoring
entity. Lor most cases, it may have been too soon in the implementation proc-

284

Chapter Ten

ess for these to have been established. Or the researcher simply could not find
such records. In the one case for which monitoring records were located
(Pyramid Lake), they had to be repeatedly requested and one large record ar-
rived so late it could not be analyzed. Our case research suggests that few re-
cords of compliance actually are kept, but this deserves further investigation.

Stability/Durability

Various types of incentives were used in the different cases to promote this
criterion, including: penalties (for unauthorized pumping in Edwards Aquifer;
for wasted water in Salt River); deadlines (for reducing withdrawals in Ed-
wards Aquifer; for requests, temporary storage, permits in Salt River; time
frames in Pyramid Lake legislation); monthly reporting in Salt River; public
agency action plans in Pyramid Lake; and rewards (additional water can be
diverted under specific circumstances in Mono Lake). Given that the literature
on effective strategies for shaping behavior demonstrates that positive rein-
forcement is more effective than negative reinforcement, more research on
positive incentives should be explored, and more examples of positive incen-
tives should be documented.

Reduction in Conflict and Hostility

Hostilities take the form of rhetoric, threats, or actions. A hostile rhetoric
or climate included the use of in-group sanctioning against members of the
group who might interact (verbally or economically) across ‘conflict lines.’
This produced a sense of fear among some parties (Edwards Aquifer). Threats
were sometimes issued before the Outcome (by the state of Nevada in Lower
Colorado River) or subsequent to it (by the utility in Snowmass Creek). Fur-
ther research is needed to understand which parties resort to threats and why.
Is it the parties that traditionally have “power,” those who feel “powerless,” or
powerful parties that believe their power is slipping away? Some examples of
hostile actions included cutting water off (Big Horn), seeking a temporary
restraining order (Edwards Aquifer), and resuming litigation.

Transformation

In the Mono Lake case, the theme of a new environmental ethic emerged
along with new ways of managing resources. Sources noted that a “new era of
[California] politics” had begun. In the Pyramid Lake case, the transformation
was characterized as a “paradigm shift” in social values and priorities. Further
research is needed to find out why such a dramatic change was perceived in
these two cases, but not in other cases that had positive results, such as the
Salt River case.

Reflections on Resolving Water Conflicts

285

In sum, numerous avenues for future research were suggested by our ini-
tial findings and analyses. In addition to practical questions of how to best
address criteria, more basic research questions emerged from these compari-
sons, as well as areas for future methodological refinement. In our final sec-
tion we turn to questions for policy.

PUBLIC POLICY AND ENVIRONMENTAL CONFLICT
RESOLUTION

Public policies set the stage on which conflicts emerge and are addressed.
Policies can aggravate conflicts through ambiguous or divisive provisions.
Polices also have the potential to prevent and manage conflicts through en-
couraging alternative dispute resolution, through clarity in the processes used
to set policies and in the material content of the policies themselves. Policies
can be structured to address conflicts early, and to anticipate and prevent
some conflicts. Public policies can facilitate effective use of information, pro-
vide forums for multi-party negotiation, and provide bargaining power for
interests which society wishes to promote and which otherwise might not
have an influence on the outcome. Policies also heavily influence the strate-
gies that parties employ to resolve conflicts, by affecting the relative costs and
benefits of litigation, or of participation in multi-party negotiations.

Several expert groups have recently considered how water policies might
more effectively prevent and manage conflict. One report directed toward
states recommends that state policy makers do the following: focus on inte-
grated watershed planning and management rather than on political bounda-
ries unrelated to watershed geography (county lines, etc.); use incentives to
encourage agency participation in watershed initiatives; facilitate improved
communication and coordination among agencies; provide state monies for
watershed efforts; establish standards that initiatives must meet to obtain state
recognition and funding; and refrain from transferring accountability and au-
thority that now resides with the state to local initiatives . 1 Along similar lines,
the Western Governor’s Association developed the “Enlibra” principles to
guide governments in addressing environmental conflicts. Among the eight
principles are recommendations to use collaborative problem solving proc-
esses, to rely on market incentives to achieve environmental goals, to address
problems across political boundaries so that whole watersheds are considered,
to solicit independent scientific expertise and reduce the problem of dueling
experts, to assess costs and benefits of problem solving options and to encour-
age state and local planning to comply with national environmental stan-
dards . 2

The public interest can be greatly enhanced by policies that facilitate ef-
fective conflict resolution. In this section, we summarize observations from

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our case analyses on the role of public policies in environmental conflict
resolution.

Policies That Encourage Alternative Dispute Resolution and
Consensus Building

Some policies encourage use of Alternative Dispute Resolution (ADR)
such as negotiation and mediation for disputes involving public agencies. In
1998, U.S. President Clinton specifically directed each federal agency to take
steps to promote greater use of mediation, arbitration, early neutral evaluation,
other ADR techniques and negotiated rule making; and established an inter-
agency ADR working group to encourage and facilitate agency use of ADR.
Many state governments are working to encourage ADR in conflicts involv-
ing state agencies. 3

Public agencies have funded ADR efforts for specific conflicts and have
provided trained agency staff to facilitate ADR efforts. For example, the De-
partment of Interior provided the time and expertise of a top federal official
for several years to facilitate settlement of the Bay-Delta dispute in California.
The Salt River Project (a large water and power provider in Arizona) dedi-
cated the time of its lead water attorney to facilitate resolution of rural-urban
disputes over water in the 1980s. Legislatures and public agencies sometimes
offer financial incentives to encourage ADR instead of litigation. For in-
stance, the California legislature provided funds for Mono Lake restoration
that were contingent on the stakeholders reaching consensus on plans to re-
store the lake and its environs.

Public notification and public involvement requirements direct agencies to
undertake actions that may help build consensus. For example, the U.S. Forest
Service must solicit public input when revising and updating forest manage-
ment plans. State and federal agencies increasingly work with local resource
users and citizen groups to resolve problems. It has been argued that agency
participation is essential to the success of local initiatives that seek to build
consensus on water management among diverse interests.

State and federal agency participation can bring credibility, continuity,
money, technical expertise and management and regulatory experience to the
process. Moreover, agencies need to take the lead in implementing manage-
ment strategies for resources under their jurisdiction and for which they are
held accountable. There is now a well-placed emphasis on local stakeholders
and local needs in resolving conflicts that involve state and federal lands and
water. Recognition of the essential role that public agencies play moves local
consensus-building initiatives beyond a simplistic “anti-government” para-
digm to a more holistic and implementable public-private partnership model.

Reflections on Resolving Water Conflicts

287

Policies That Encourage Litigation and Discourage Multi-
Party Negotiations

Federal agency budget incentives discourage participation in consensus
building and facilitated negotiations when an agency can spare its own budget
and staff time by turning a conflict over to a separate agency for litigation. For
instance, federal agencies refer conflicts under their jurisdiction to the U.S.
Department of Justice to handle litigation. Litigation may be more attractive
to agency officials than addressing the conflict through lengthy participation
in multi-party negotiations, given tight budgets and overworked staff.

Policies that require public access to meetings, memos and meeting re-
cords involving public agencies (open records laws and the federal Freedom
of Information Act) can discourage private parties from participating in
negotiations for fear that financial matters they would prefer to keep
confidential will become a matter of public record. This particularly is a
concern of private firms, such as water and power utilities, which operate in a
competitive market and which may not want internal financial matters to
become public. The Federal Advisory Committee Act (FAC A) is intended to
ensure open processes and adequate representation on committees that advise
federal agencies. Since its passage in 1972, it has helped promote greater
balance of interests on councils and committees working on federal matters. 4
However, FACA’s chartering and approval requirements create costs and
delays for both agencies and participants. Litigation over FACA provisions
has made some agency personnel wary of collaborative processes. 5

Policies can exacerbate conflict when representation in water decision
making is out of line with modem demographics and political realities. For
instance, there is a lack of urban and recreational water user representation in
many states’ water management institutions. It is still quite common for state
water commissions to favor representation from traditional resource user
groups, primarily agriculture. While agricultural representatives are essential,
given that agriculture is a major water user, over-representation leads to in-
creased conflict as public officials make choices inconsistent with new social
values that view urban growth, recreation and environmental protection as
important water uses.

Policy Characteristics That Help Prevent and Manage Water
Conflicts

The previous section gave examples of policies that affect resolution of
water conflicts. This section discusses generic characteristics of policies that
can help prevent and manage disputes.

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Clarity and Consistency. Policies can reduce uncertainty for parties by
clearly stating the protection afforded to water right holders, water user re-
sponsibilities, and agency criteria and procedures for addressing water prob-
lems. For instance, state procedures for transferring water rights generally
specify the process that must be used, information to be provided and valid
grounds for objecting to a proposed transfer.

Policies need to be meaningfully and consistently enforced. Inconsistency
and contradictory signals from different levels within an agency or from dif-
fering agencies have been a classic problem among federal agencies. Inconsis-
tency can aggravate water conflicts because parties do not know what rules
apply or what to expect.

Interjurisdictional Coordination . For rivers, lakes and aquifers extending
beyond the borders of a single state, three means of formally resolving inter-
state conflicts over water allocation have evolved in the U.S.: (a) negotiations
among the states resulting in an agreement (an interstate compact) that is rati-
fied by Congress; (b) legislative allocation through an act of Congress in the
absence of a negotiated agreement among the states; and (c) litigation in the
federal courts resulting in judicial allocation among the states. Negotiated
agreements formalized as interstate compacts are common in the western
states, where there are nearly two dozen such compacts . 6 Compacts specify
each state’s right to use water from the source governed by the compact. For
compacts to be effective they must be enforceable, with penalties for viola-
tion. This, in turn, depends on the costs of measuring water use, monitoring
compliance and taking enforcement action when violations are suspected. En-
forcement has proved costly. When an injured state brings action in federal
court, interstate compact disputes are heard by a Special Master appointed by
the U.S. Supreme Court. Several of the eight cases we evaluated involve in-
terstate compact conflicts (Pecos River, Pyramid Lake, Lower Colorado
River).

Compact violations that continue for decades and cumulatively involve il-
legal uses of large amounts of water are not rare. Compact violations can be
economically rational when the expected penalties are small and a lengthy
court process defers the moment when a violating state actually will be or-
dered to “pay up.” Moreover, if the marginal value of water is relatively low
in the state being shorted, it will not be worth their while to undertake expen-
sive prosecution of the violator.

Like other elements of public water policy, interstate water allocation
compacts need to specify penalties for violation and specify monitoring and
enforcement mechanisms that do not require lengthy court proceedings to im-
plement. Compact provisions also need to account for uncertainties so that the
parties do not have to go to court each time a drought or other emergency oc-

curs.

Reflections on Resolving Water Conflicts

289

Equitable cost sharing. Once technical solutions to water conflicts are
identified and the parties agree on the problem-solving approach, the next
challenge is how to divide up the costs of implementing a solution. If the costs
are non-trivial and there are no deep pockets that readily can be tapped, then
cost-sharing becomes a highly conflictual issue. Cost-sharing was problematic
in many of our case studies (Edwards Aquifer, Mono Lake, Pyramid Lake,
Salt River). Parties hold quite different perspectives on what constitutes “fair”
allocation of costs. For instance, in conflicts over providing water for envi-
ronmental needs - environmental interests may argue that those who have
used a lot of water in the past (farmers, industry and cities) are the cause of
stream dewatering and so ought to bear the costs of a solution. Historical wa-
ter users, on the other hand, will argue that they were using water in a manner
legitimized and encouraged by past water policies and ought not to be penal-
ized retroactively. They will argue for a “beneficiaries pay” principle of cost
sharing under which environmental interests and public agencies with fish and
wildlife responsibilities bear most of the cost.

These diverse views were cogently articulated in several case studies
(Mono Lake, Pyramid Lake, Edwards Aquifer). Environmental advocates ar-
gue that the “beneficiary pays” principle ignores the critical issue of “how we
got here in the first place” and criticize cost-sharing plans that ignore decades
of environmentally damaging water development activities. Public policies
need to provide cost sharing principles to guide parties in addressing such di-
lemmas. In the past, federal money helped ease water conflicts by developing
new supplies at little cost to local water users. Now, much of the cost burden
falls on state and local governments and water users, making disputes over
cost sharing more intractable.

Bargaining power for interests representing social values. There are four
principal sources of bargaining power in water conflicts: wealth, political
connections, property rights and law. The latter two are directly determined
by public policy. Water rights initially were recognized by, and are governed
by, state water law. Laws to protect particular interests arise from the courts,
legislatures and administrative agencies. The structure ofU.S. western water
law provides strong bargaining power to historic consumptive users of water,
through prior appropriation water rights, water use permits and long term con-
tracts to use water and electric power provided by public water projects.
Those interests which have money to buy water also have bargaining power -
thus the influence of growing cities, resort developers and industry on water
allocation and water policy. The bargaining power that has given tribes and
environmental interests an influence on water management comes from yet
another source - federal and state laws and related court rulings that require
protection of endangered species, water quality and wetlands. Any type of
water use that has value to society (from growing cotton to restoring fish
populations) needs to possess some form of bargaining power in order to in-

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fluence water management. Public policies can deliberately create bargaining
power for previously under-empowered interests.

Building Better Problem Solving Capacity. Policies that encourage coali-
tion building and extended dialogue (as often occurs when negotiating an
agreement or drafting legislation) build better working relationships than liti-
gation, though parties left out of legislative processes or negotiating sessions
continue to work to undermine implementation even after an agreement is
signed or legislation is passed. Policies that require parties to work collabora-
tively build better and more enduring working relationships. Social invest-
ment in collaborative processes is more likely to build up social capital that
can yield tangible long term benefits (more cost effective problem solving, for
instance) than adversarial processes.

The Influence of Public Policies on Achieving Success

Public policies influence the ability of conflict resolution processes to sat-
isfy the varying success criteria. Here, we refer to specific information in case
analyses to highlight the interaction between policies and specific success cri-
teria.

First, we consider the “Outcome Achieved” category and its specific suc-
cess criteria. Public policies have a direct inAuence on the criterion Unanimity
or Consensus. Laws and administrative policies dictate the procedures by
which judges issue an opinion, agencies promulgate rules and legislative bod-
ies pass new laws. Policies also indicate what percentage of a legislative body
must approve proposed legislation for it to become law.

With respect to Verifiable Terms, policies require that court and adminis-
trative rulings, as well as legislation, be in writing. In addition, agencies have
internal guidelines about publicizing agreements to which they are a party.

Ratification procedures are direct matters of policy. Policies dictate
whether formal ratification and judicial approval is necessary for a particular
type of agreement.

Public policies also are important in the Success Category “Process Qual-
ity.” Different types of conflict resolution processes were perceived quite dif-
ferently with respect to the criterion Procedurally Just. Policies that require
input from affected interests and notice to parties, as in water right adjudica-
tions, help make processes more accessible and inclusive. Analysis of the
eight case studies reveals that different types of problem solving processes are
“ranked” differently on procedural justice. Legislative processes were per-
ceived as rushed and incomplete. Litigation and court rulings were seen as
fair, but protracted and inefficient and removed from public debate. Adminis-
trative processes were perceived as thorough and not rushed, but potentially
subject to the inAuence of more powerful actors.

Reflections on Resolving Water Conflicts

291

Policy requirements and regulatory deadlines that impose a time line on
formal problem-solving processes may leave inadequate time for negotiations
and consensus building. However, these policies also give environmental ad-
vocates a standard of timeliness and responsiveness to which they can hold
public agencies accountable. Policy deadlines help prevent “stalling” by
agencies reluctant to take action against politically powerful water users, such
as cities and irrigation districts. Deadlines also can provide strong incentives
to achieve a settlement.

Based on the case analyses, the implications of policy-mandated deadlines
for water dispute resolution are mixed. On the one hand, it is advantageous for
agencies to have flexibility in implementing the Endangered Species Act, the
Clean Water Act and other national mandates in order to accommodate local
problem solving. On the other hand, environmentalists are concerned that
agencies and resource users will take advantage of added flexibility to avoid
their responsibilities to protect species and water quality. In addition, flexibil-
ity and absence of deadlines may reduce the pressure on the parties to achieve
a negotiated solution.

In theory, our legal system and litigation processes are set up to address
concerns about procedural justice. In practice, these concerns often go unad-
dressed for at least some of the parties. Some parties may say such formal
processes are “fair,” yet feel unsatisfied with the results.

In cases where public participation is mandated by policy rules, the proc-
ess at least appears inclusive. Perceptions may follow that the process has in-
deed been inclusive, which is an important dimension of procedural justice.
At a minimum, public participation rules may catalyze some sort of process to
draw the parties into conversation. However, there is also the danger that
mandated processes may be considered “good enough,” precluding any fur-
ther attempts to unearth all views and include all parties who have a potential
interest. Agencies may feel that they have done the minimum required of
them and therefore “have been inclusive.”

By contrast, in cases in which the negotiations are not structured by an ex-
isting policy such as NEPA, involving parties and identifying concerns be-
comes a political process and a matter for public debate. This may result in a
more thorough job of identifying concerns, unless certain interests dominate
the process, or the pressures of the majority exclude a minority voice. A case
may actually be perceived as both more and less thorough (as in Pyramid
Lake) - more thorough in identifying a broader range of concerns, while less
thorough in actually being able to address this broad range. The political
process may be perceived as inadequate, ironically, because it has been
broader and more thorough and inclusive. In this sense, the values of inclu-
siveness and achieving consensus and finality seem to be at odds.

With respect to the criterion Procedurally Accessible and Inclusive, not all
conflict resolution processes (court rulings, negotiated agreements) require

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public participation. In cases where it was required, extensive provisions were
made to ensure that this process was completed thoroughly and in a way that
could be documented.

The Costs of Dispute Resolution Processes are strongly affected by public
policies. Policies need not seek to minimize dispute costs, as non-trivial costs
provide an important incentive for conflict resolution. This is evident in the
many cases of litigation being settled before the matter goes to a full trial.
However, policies should attempt to provide low cost venues for settlement -
such as informal hearings, prior to escalating the forum to full public hearings
or to court proceedings. Disputes involving small amounts of water among
neighbors should be addressed in a lower cost venue than complex disputes
over large water projects or interbasin water transfers. Our cases exhibit a
range of venues, from local negotiations in a watershed (Snowmass Creek), to
negotiations and legislation within a state (Edwards Aquifer, Mono Lake), to
lengthy multi-jurisdictional litigation and negotiations (Pyramid Lake, Pecos
River).

Under the success category “Outcome Quality,” there are many public pol-
icy interactions. The costliness of solutions to water problems is one concern
that federal policies attempt to address when federal money is being commit-
ted through legislation, and federal participation in negotiated agreements.
With respect to Cost Effective Implementation, the federal Office of Manage-
ment and Budget (OMB) examines the federal share of costs for agreements
to which the federal government is a party and advises the administration on
whether the agreement is economically reasonable from a federal point of
view. Lor instance, the OMB recommended a presidential veto of nearly every
proposed negotiated settlement of tribal claims in the 1980s and 1990s. It did
so on the grounds that the federal costs were too high, that more economical
means could be found to address water needs and that non-federal parties
should bear a larger share of the costs. Political pressure from the region that
benefits from the settlement has generally prevailed over the OMB’s veto rec-
ommendations. However, OMB’s objections have forced more local cost
sharing and reduced federal financial obligations. Lederal requirements for a
cost-benefit analysis of new water projects and the examination of costs,
benefits and regional economic impacts for an Environmental Impact State-
ment all put pressure on parties to pay attention to costs when crafting an
agreement. Court rulings do not have to comply with economic criteria,
though parties testifying before the courts argue for rulings that do not create
undue economic hardship for the interests they represent. Courts may be
urged by testimony from affected parties to consider costs, but are not bound
to do so. Some states have legislation requiring assessment of costs, benefits
and other impacts of agency actions on private property. Such legislation
seeks to control regulatory activities that would diminish private property val-
ues or unreasonably constrain owners’ use of their lands.

Reflections on Resolving Water Conflicts

293

Some public policies are at odds with cost effectiveness. For instance, fed-
eral policies that subsidize agriculture through long term contracts to use wa-
ter and electricity help to maintain rural economies and ways of life. How-
ever, such contracts also make it more difficult and costly to move water out
of agriculture in response to conflicts over water needed for endangered fish
or for urban growth.

Many types of public policies (local, state and federal levels) affect Finan-
cial Feasibility /Sustainability. Cost allocations, water pricing, conservation
and availability of loans are all influenced by federal and state water policies
and federal obligations to different stakeholders. The acceptability of un-
funded mandates also depends on the policy “climate” at the time the agree-
ment was reached. Some of our case studies specifically addressed the prob-
lem of unfunded mandates (Edwards Aquifer, Mono Lake).

For Cultural Sustainability /Community Self-Determination, federal laws
require federal agencies to consider the impacts on cultural resources, as do
the policies of some states and tribes. The federal National Environmental
Policy Act (NEPA) requires that impacts of federal actions on the human en-
vironment be considered . 7 Economic impacts on potentially affected commu-
nities are examined in the economic impact section of Environmental Impact
Statements. However, “ways of life” are rarely explicitly protected unless
they are tied to other policy matters like tribal sovereignty or racial discrimi-
nation. Policies that supported inclusive, open processes tended to produce
agreements that addressed communities’ sovereignty and self-determination.
When conflict resolution processes left parties out, their sovereignty/cultural
sustainability was often perceived as compromised, and it became a conten-
tious issue.

In our eight cases, the Outcomes reflect a general trend of less support for
the preservation of rural and agricultural interests, and more support for tribal
self-determination and cultural preservation. Some would argue that this cor-
rects the imbalance of historical support for the former at the expense of the
latter.

Under Environmental Sustainability, myriad public policies affect the con-
sideration of environmental impacts. Examples at the federal level include
NEPA, the Clean Water Act and the Endangered Species Act. Many states
and tribes also have environmental policies to which conflict resolution Out-
comes must conform . 8 Public policies, in general, do not require a considera-
tion of drought (above and beyond environmental impacts associated with
drought - such as reduced stream flows or declining water quality). However,
water users in regions prone to drought themselves are motivated to consider
drought scenarios.

Clarity of Outcome is affected by public policies in different ways. Spe-
cific policies may require an agreement to carefully address endangered spe-
cies or water quality concerns, mandating clarity on these matters. However,

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the policy/political process itself may encourage ambiguity as parties seek to
“gloss over” tough issues in an attempt to pass successful legislation. The
politics of making legislation often leads to vague language because parties
can more easily agree on vagaries than on details. Court rulings also fre-
quently are unclear with regard to implementation - leading to follow-up liti-
gation, legislation or agency actions to fill in the details. Court rulings can
settle matters of who has what rights, giving stakeholders a clearer basis for
further negotiations. In addition, baseline conditions (such as habitat protec-
tion or streamflow levels) often are clearly defined by courts in setting resto-
ration standards, giving water users clear parameters to govern future negotia-
tions. This is evident in the Edwards Aquifer, Mono Lake, Pecos River and
Big Horn cases, which involve a mix of court, legislative and administrative
actions.

With respect to Satisfaction/Fairness, legal procedures and public policies
certainly have implications for the likelihood that parties will be satisfied and
will perceive the outcome to be fair. At least one party, and possibly all (as in
the Big Horn case), is likely to be dissatisfied with a court ruling. Appeals and
subsequent rounds of litigation are almost inevitable. Legislation does not
require that all parties be satisfied (and often they are not). Administrative
rulemaking is a public process and is open to the participation of all parties.
Negotiated agreements implicitly require active participation by key parties.
So these processes may be more likely to produce agreements that satisfy
most or all parties. However, the Pyramid Lake case provides an important
test of this generalization.

Regarding Compliance with Outcome over Time, some cases revealed pub-
lic policies that provide clear steps to check compliance. Other cases were
silent on these provisions. It is not clear whether the presence of compliance
monitoring provisions is due to differences in policies, or to differences in the
skill and persistence of the researchers to uncover such provisions. Court rul-
ings do not necessarily specify ways to verify compliance, but rather leave
monitoring to the interested parties who have legal recourse if others fail to
comply with the ruling. The Pyramid Lake case specifically required compli-
ance measures and also mechanisms for future negotiations.

With respect to Reduction in Conflict and Hostility, in looking across the
cases, court rulings are associated with escalating conflict, while negotiation
and legislation are associated with decreasing conflict. However, if a key
party feels left out of the negotiations or legislation, some parties’ issues will
be solved and others may be worse off. Consequently, any change in hostility
may be unclear. When a process does not require the participation of all par-
ties, it does not encourage the building of relationships (which leads to the
probability of future litigation and struggles with implementation). Similarly,
if the process required participation, yet was not a collaborative process, the
hostility will remain.

Reflections on Resolving Water Conflicts

295

If a settlement or ruling results in increased tension, many would say it had
failed. A court ruling that “settles” certain questions of law may have
achieved its stated puipose of preserving individual rights, but may not facili-
tate social harmony. As such, questions of success depend upon which of the
many success criteria one emphasizes.

In some situations (e.g., Lower Colorado River), the conflict resolution
process has actually made hostile rhetoric pointless. Those who use such tac-
tics are shunned and excluded from the working relationship.

With respect to Improved Relations, if coalitions were needed to achieve
the agreement or settlement (e.g., as in legislation rather than in a court rul-
ing), then relationships seemed to persist afterward in some constructive form.
If the process for reaching a settlement requires working together, then rela-
tionships are built. Policies that encourage constructive engagement can fa-
cilitate this. Working together also increases parties’ perceptions of each
other’s competence. Certain kinds of agreements imposed the need for a later
coordination and the necessity for an ongoing relationship. However, some
cases required collaboration to achieve the initial agreement, yet the relation-
ships continued to be rocky afterwards. In these cases, one party had typically
been left out (or chose to stay out ) of the negotiations (Pyramid Lake, Snow-
mass Creek). The party who stayed out of the process had not formed working
relationships with the others. Consequently, mutual trust had not been estab-
lished and there is no (relational) barrier to initiating further hostile action
against each other.

Some processes included a third party mediator who appeared to hold the
trust that was fragile between the parties themselves. This finding reinforces
the idea that third party neutrals can often serve as a “repository of trust” for
parties who cannot yet trust each other . 9

With respect to Cognitive and Affective Shift, policies that encourage par-
ties to engage directly with each other, rather than keep their distance
(through lawyers and the court), cause assumptions to be tested and increase
the possibility that parties will encounter enlightening information. Both of
these are essential to creating cognitive shifts.

When a party is left out of the process (Snowmass Creek legislation.
Pyramid Lake), it does not “buy in” to the solution or the relationship. Poli-
cies cannot mandate cognitive shifts, but they can help create them by com-
pelling parties to work together.

With respect to Ability to Resolve Subsequent Disputes, implementation
seems to provide the true test for many agreements and new relationships. As
in the previous criterion, if the public policies governing the dispute resolu-
tion process required building a working relationship, it persists after the
agreement is signed (and it facilitates implementation of the agreement).

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Summary on the Role of Policies

This section has examined some of the ways in which public policies af-
fect resolution of water conflicts and has identified policy characteristics help-
ful in preventing and managing conflict. However, a larger question remains.
It is not clear what degree of effort should be expended in policy attempts to
manage and mitigate conflict. While conflicts can be costly and destructive,
they also have a socially productive role. New water uses and new values first
are articulated through conflicts between those seeking changes and those
who benefit from existing patterns of water use. Incentives to accommodate
new needs are created by the costs and uncertainties associated with litigation
and other forms of conflict. Without such incentives, current water users,
managers and policymakers would have little reason to change. Consequently,
public policies need not seek to entirely avert conflicts over water. Rather, the
goal should be to manage conflicts so that the productive outputs of conflict
are generated cost effectively, working relationships are built or reinforced
and the costs of addressing conflicts are distributed in a manner consistent
with public values.

Public policies have a far-reaching impact on the manner in which water
disputes are addressed and the degree of success in achieving satisfactory dis-
pute resolution. Some policies appear to encourage litigation through ambigu-
ity and failure to establish alternative processes. Other, more recent policies
direct public agencies to pursue alternative dispute resolution. Policies articu-
lated through court decrees and legislation very directly affect the relative
bargaining power of environmentalists, tribes, cites and irrigators embroiled
in water conflicts. Public policies can assist in managing water disputes by
being clear and consistently enforced, through providing low-cost interjuris-
dictional coordination, building better problem solving capacity, articulating
public support for constructive processes, monitoring costs and progress on
implementing proposed solutions, and offering conflict resolution forums ap-
propriate to the complexity of the conflict and the values at stake.

CONCLUSION

When confronted with yet another long book, one may ask, “Why bother?
What is the reward for working through such a lengthy framework?” This
framework offers multiple uses and benefits for researchers, practitioners, and
dispute resolution program managers, as well as those who fund dispute reso-
lution efforts and environmental stakeholders. The framework and associated
analyses provide a broader understanding of each parties’ individual goals and
can enhance participants’ ability to craft more effective agreements and to
implement those agreements. On a broader social level, the framework and

Reflections on Resolving Water Conflicts

297

the analysis and reflection it encourages will facilitate the development of
better public policies, while also helping agencies to more effectively manage
conflicts. Substantial gains can be made for each of these groups from a sys-
tematic examination of any single case, and even more so for the consistent
cross-case comparison that our framework encourages. We hope that as effec-
tive strategies for resolving conflict become an integral part of our cultures
and our public institutions, systematic reflection will become second nature as
well. Success in environmental conflict resolution will then become a self-
fulfilling prophecy.

NOTES

1 Frank Gregg, Doug Kenney, Kathryn Mutz, and Teresa Rice, The State Role in Western

Watershed Initiatives (Boulder: Natural Resources Law Center. University of Colorado, 1998).

2 http.//www. westgov.org/wga/initiatives/enlibra. Western Governor’s Association, 1998.
Policy Consensus Initiative, “States Mediating Change: Using Consensus Tools in New

Ways” (Portland. OR: Policy Consensus Initiative, 1998).

4 Thomas C. Beierle and Jerrell C. Cayford, “Democracy in Practice: Public Participation in

Environmental Decisions,” (W ashington, DC: Resources for the Future Press, 2002).

5 Douglas D. Morris, “Alabama-Tombigbee Rivers Coalition v. Department of Interior: Giving

Sabers to a ’"Toothless Tiger,” the Federal Advisory Committee Act,” Environmental Law
26(1), (Spring 1996): 393-417.

6 Lynne Lewis Bennett, Charles W. Howe, and James Shope, “The Interstate River Compact as

a Water Allocation Mechanism: Efficiency Aspects,” American Journal of Agricultural
Economics, 82(4) (November, 2000): 1006.

7 See Appendix B for more details.

8 See Appendix B for more details.

9 Herbert C. Kelman, “Informal Mediation by the Scholar-Practitioner,” in International Me-

diation: A Multi-level Approach to Conflict Management, eds. Jacob Berkowitz and Jeffrey
Z. Rubin, 64-96 (London: Macmillan, 1992).

APPENDIX A

Guidebook

FOR ANALYZING SUCCESS IN ENVIRONMENTAL
CONFLICT RESOLUTION CASES

GUIDEBOOK for Analyzing ECR Cases

301

APPENDIX A TABLE OF CONTENTS

REASONS FOR THE GUIDEBOOK 303

DEVELOPMENT OF GUIDEBOOK 306

USING THE GUIDEBOOK 308

CASE INTRODUCTION 315

Cover Sheet 3

History 3

CRITERIA CATEGORY T- OUTCOME REACHED 3

the Outcome Analyzed 316

A. Unanimity or Consensus 316

B. Verifiable Terms 317

C. Public Acknowledgement of Outcome 318

D. Ratification 319

CRITERIA CATEGORY II -PROCESS QUALITY 322

A. Procedurally Just 322

B. Procedurally Accessible and Inclusive 323

C. Reasonable Process Costs 326

CRITERIA CATEGORY III - OUTCOME QUALITY 330

A. Cost-Effective Implementation 330

B. Perceived Economic Efficiency 333

C. Financial Sustainability/Feasibility 334

D. Cultural Sustainability/ Community Self-determination 336

E. Environmental Sustainabiliity 340

F. Clarity of Outcome 343

G. Feasibility/Realism 345

H. Public Acceptability 346

I. Efficient Problem-solving 347

CRITERIA CATEGORY IV - RELATIONSHIP OF PARTIES TO
OUTCOME 349

A. Outcome Satisfaction/fairness - As Assessed By Parties 349

B. Compliance with Outcome over Time 351

C. Flexibility 353

D. Stability/Durability 354

302

APPENDIX A

CRITERIA CATEGORY V - RELATIONSHIP BETWEEN PARTIES 357

A. Reduction in Conflict and Hostility 357

B. Improved Relations 358

C. Cognitive and Affective Shift 361

D. Ability to Resolve Subsequent Disputes 363

E. Transformation 364

CRITERIA CATEGORY VI - SOCIAL CAPITAL 367

A. Enhanced Citizen Capacity to Draw on Collective

Potential Resources 368

B. Increased Community Capacity for

Environmental/Policy Decision-Making 369

C. Social System Transformation 371

GUIDEBOOK for Analyzing ECR Cases

303

OVERVIEW

Reasons for Guidebook

In order to provide a framework for considering the important elements for successful
environmental conflict resolution, this Guidebook provides a template for organizing
case information according to logical categories. These categories are based on various
criteria for assessing the effectiveness of conflict resolution processes and outcomes in
the realm of environmental and public policy disputes. In Chapter 2, we summarize
criteria for evaluating successful environmental dispute resolution. These criteria were
developed from a comprehensive review of existing literature, 1 practitioner interviews,
and adaptations from related fields. We propose that these criteria fall into six
conceptual categories: (1) Outcome Reached, (2) Process Quality, (3) Outcome
Quality, (4) Relationship of Parties to Outcome, (5) Relationship Between Parties, and
(6) Social Capital. These criteria are listed in Figure 1 .

Guidebook Goals

Guidebook goals include the following:

(1 ) To lead users through the process of searching for and organizing the
information needed to assess each criterion for specific case studies

(2) To allow evaluation of outcomes and processes based on the criteria, both
on a case by case basis and across multiple cases

(3) To provide a framework for discussing conceptualizations of success for
environmental conflict resolution.

We have organized the criteria into a framework for understanding and evaluating
alternative concepts of success in conflict resolution. In addition, this guide may assist
parties and facilitators in identifying the variables they want to consider in developing
and evaluating their own conflict resolution processes.

It is important to know that this Guidebook was used to analyze cases by graduate
students using accessible public information, without personal interviews of mediators
and stakeholders. This framework was designed to be non-intrusive and low cost in
collecting and analyzing data. It need not create burdens for process facilitators and
parties.

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APPENDIX A

Guidebook Products

Within the Guidebook we describe each criterion along with specific indicators to be
assessed, specific sources for the information, and the best times for assessment . 2
This Guidebook provides multiple useful products.

Standardized case studies

First, it provides for standardizing the format of case study reports. Our list of criteria
and categories are all-inclusive, attempting to reflect the diversity of variables linked by
various scholars and practitioners to understanding effective resolution. Guidebook
users may decide to use only a subset of criteria depending on their focus and their
assumptions about success. However, the presence of all likely criteria in one
framework allows for ascertaining information on all these variables so that
comparisons across cases can be made. Not only can cases be comparatively analyzed,
but resolution processes (such as litigation, researching strategy, informal bargaining,
and mediation) also can be compared through this framework . 3

Researching Strategy

Second, the Guidebook provides a strategy for researching cases. What are the
dimensions that various writers and practitioners have considered important to assess?
Where would one go to find such information? When should it be assessed? The
Guidebook is structured in a user-friendly way to provide guidance in what can be a
daunting form of research.

Organizational framework

Thirdly, the Guidebook provides a framework for storing and organizing the many
pieces of information relevant to documenting and analyzing these complex cases. It
serves as “filing system’’ or a series of “file folders” that, once familiar, can make the
information organizing task easier and yet more thorough.

Education & research tool

Finally, the Guidebook serves as a way to teach students about the multiple issues
involved in these cases substantively, but also about the methodological issues
involved in doing case analysis and/or comparative research.

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305

Effective Environmental Conflict Resolution
Criteria Categories

I. Outcome Reached

• Unanimity or Consensus

• Verifiable Terms

• Public Acknowledgement of Outcome

• Ratification

II. Process Quality

• Procedurally Just

• Procedurally Accessible and Inclusive

• Process Costs

III. Outcome Quality

• Costs of Implementing Outcome

• Financial Feasibility/Sustainability

• Cultural Sustainability/Community Self-Determination

• Environmental Sustainability

• Clarity of Outcome

• Feasibility/Realism (legal, political, scientific)

• Public Acceptability

• Efficient Problem-Solving

IV. Relationship of Parties to Outcome

• Satisfaction/Faimess — As Assessed by parties

• Compliance with Outcome over Time

• Flexibility

• Stability/Durability

V. Relationship Between Parties

• Reduction in Conflict and Hostility

• Improved Relations

• Cognitive and Affective Shift

• Ability to Resolve Subsequent Disputes

• Transformation

VI. Social Capital

• Enhanced Citizen Capacity to Draw on Collective Potential Resources

• Increased Community Capacity for Environmental/Policy Decision-
Making

• Social System Transformation

Figure 1. Criteria Categories

306 APPENDIX A

Development of the Guidebook

Braving the Currents and this companion Guidebook grew out of a multi-stage
research project funded by the Udall Center for Studies in Public Policy at The
University of Arizona. Our goal was to develop criteria and methods for assessing
“success” in environmental conflict resolution.

We employed several strategies to develop comprehensive criteria: (1) identifying and
refining the various criteria in existing literature from several fields: conflict resolution,
planning, economics, public administration, psychology, etc.; (2) augmenting this list
through interviews with researchers and practitioners; and (3) reasoning by analogy
from related fields where similar evaluation research had been done. Our project’s first
year of work produced an extensive review of these criteria, and a comprehensive
framework for organizing and analyzing the multiple dimensions of success. 4 (See
Figure 1.)

In addition to suggesting conceptual categories for the criteria, our analysis suggested
that criteria should be assessed at several points in time over the course of a conflict:

( 1 ) baseline, before resolution process, (2) during the resolution process, (3)
immediately upon completion/signing, (4) short-term after agreement or settlement,
and finally, (5) long-term after agreement or settlement. Most criteria are not assessible
at every stage, however knowing which criteria to assess at which stage can make
evaluation easier (see figure 2). Any criteria assessing change will require a baseline
assessment against which to gauge movement. Most criteria are best assessed at one or
two different points in time, and they are more difficult to assess at other points. This
information is noted under each criterion.

BASELINE

before

resolution

process

DURING

the

resolution

process

Immediately upon
COMPLETION
or signing

IMPLEMENTATION

SHORT-TERM

after

agreement/

settlement

LONG-TERM

after

agreement'

settlement

Figure 2. Stages for Criteria Assessment

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307

Accomplishing the overall objective ofthe project (to develop and evaluate criteria for
evaluating success in environmental conflict resolution) required applying this
framework to case studies. It was through analyses of actual cases that we examined
the feasibility of taking abstract success concepts (agreement reached, agreement
quality, process quality, etc.), of developing specific criterion under each success
concept and of crafting questions designed to direct researchers to gather information
to assess each criterion.

In order to examine systematically the chosen cases with our criteria conceptual
framework, each criterion required operationalization. How does one restrain a case
review from becoming merely an impressionistic snapshot, determined by the
particular “lens” ofthe reviewer? The review becomes systematic by setting out
common conceptual categories in advance, and by specifying how each concept (or in
this case each criterion) will be measured. The guide attempts to identify the
information needed to assess the case studies on each of the success criteria.

Applying an Analytic Framework

We began the process of considering successful resolution by identifying a broad set of
criteria and evaluating how to apply them to real cases. With the process we have
developed, we can note how cases may rate according to various criteria. However, we
cannot comment on overall judgments of success for these cases because to do so
requires the additional step of prioritizing (and weighing) the different components of
success. This is ultimately not a research question but rather depends on the purpose
and values of the guidebook user. 5 In the broadest sense, the weighing of the different
success criteria is also a public policy question.

However, once personal or community values have been articulated, the Guidebook
framework could be used to generate judgments of success. Once a user (or researcher)
has identified criteria priorities (for example, comparing cases on environmental and
cultural sustainability, without regard to cost or justice of process) and made explicit
what would be most and least desirable on each indicator of the criteria, s/he could then
compare cases on only those criteria and produce a “judgment” of success.

As described in Chapter 2, Innes 6 and others have called for more comparative case
study analyses. If a body of cases was analyzed using this framework, and if new cases
were recorded and reported according to this framework, cross-comparison of cases

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APPENDIX A

would be greatly facilitated. Such standardized reporting would also allow for
comparison and hypothesis-generation across criteria and related conceptual
dimensions.

Using the Guidebook

We realize that on first viewing, the Guidebook may seem overwhelming in its scope
and number of categories. We have two responses to this. First, the user is encouraged
to see this as a new filing system. A new filing system may initially seem difficult to
internalize, but once it becomes familiar, it actually shortens one’s task rather than
lengthens it. After the user invests time up front to become familiar with the various
criteria and indicators, this framework will better serve the user.

Second, not everyone will find all criteria necessary or equally relevant to their
purposes. Users may focus on the subset of criteria most suited to their purposes. We
encourage the use of the exhaustive list of criteria to further the goal of comparative
case analysis.

Guidebook Organization and Terminology

The Guidebook is organized into three levels. At the top level, the criteria are clustered
into six umbrella categories (see figure 1) designated in the Guidebook by Roman
numerals. At the middle level, the criteria themselves are under these categories, and
designated by capital letters. Each criterion is accompanied by a general definition.
Then, in order to make actual measurement possible, each criterion also must be
operationally defined via specific, measurable indicators. We list several possible
indicators for each criterion, as well as notes of clarification, cross-referencing, best
sources, and best times for assessment. The user is encouraged to maintain this
structure for organizing information, as well as for reporting the information, as this
standardized template then can provide for easy comparison across cases.

The Guidebook can be used for several types of cases. One of the original goals of this
project was to provide a framework that would not only allow for comparison across
cases, but also across conflict resolution methods. Thus we have developed it and
tested it on cases of negotiation, administrative rulemaking, legislation, and litigation.

GUIDEBOOK for Analyzing ECR Cases

309

This allows for comparative analysis and discussion of the virtues and challenges of
various methods of conflict resolution.

However, because each of these methods of conflict resolution may have different
goals and outcomes, it has made the development of a general terminology difficult.

For example, certain processes aim to produce “agreement,” while other processes do
not aim for this goal. Therefore we have had to adopt the general term of “outcome” to
cover the output of whatever process is being considered — whether that be an
agreement, a court ruling, legislation, etc.

Tools

Case Report Template

Each of the criteria presents a list of questions to be answered. This framework is
meant to provide a template for the case report and for taking notes. Careful noting of
sources increases the value of the case report. Once the Guidebook has been worked
through, the information can be reported in a textual case study report that follows the
outline provided in this guide. We suggest including headings as listed in this outline
with answers in narrative form . 7 This guidebook is meant to serve as a form to organize
notes and information and as a guide for research, but it is in most cases not meant to
be or even likely to be filled in exhaustively and completely. Not every case will
provide information for every category herein, but one should note when information is
inaccessible or not relevant to a case.

Supplemental Appendices

Appendices following the Guidebook provide additional useful tools for researching
and organizing case information. Appendix B reviews federal acts that provide the
framework for many steps in the conflict resolution process that may be mandated or
directed by law. Users unfamiliar with administrative law should review this appendix,
and also consult it when completing Guidebook sections where such acts may have
supplied a framework for procedure. Appendix C provides concrete guidance on
applying the economic and financial criteria to case studies. Specifically it addresses
the criteria of Reasonable Process Costs, Cost-Effective Implementation, Perceived
Economic Efficiency, Financial Feasibility/Sustainability, and Cultural/Community
Sustainability.

310

APPENDIX A

Strategies
Choose a case

A good place to start is becoming familiar with a particular case. The first section of the
guidebook, called the case “cover sheet,” provides questions one should ask, and
ultimately be able to write on for the chosen time period of one’s chosen case. It is
very important to applying the Guidebook framework properly for one to choose a
specific outcome of one’s case for further analysis.

The Guidebook cannot be successfully applied to a case's whole history of conflict and
its resolution. Because of the many specific questions herein, one must choose a
particular outcome on which to focus. This can be, for example, a negotiated
agreement, a court settlement, the passing of legislation, or even the establishment and
functioning of an ongoing commission or board. However, one must choose to focus
on only one for the purpose of this analysis. Neglecting to define one’s focus would
result in each criterion being applied to potentially multiple objects simultaneously,
with no true, useful measurement of any one thing. One cannot apply assessment
without defining boundaries around what one is assessing.

If desired, one could do a separate analysis on the same case for a different outcome or
time period and compare. One could focus on two contemporary processes in the same
case, or two related court rulings. But these must be treated as two separate applications
of this framework in order to give each process and its associated outcome its own
assessment.

Become familiar with the case

Beforejumping into the specific questions ofthe Guidebook, it is best to become at
least generally familiar with the case. Consult secondary reports or summaries of the
conflict, if possible, keeping in mind the particular perspective or bias ofthe source.
Consult newspaper or other media summaries (see below). Working through the
Guidebook’s case “cover sheet” is a good way to get a “mapping” ofthe conflict, its
players, issues, development and history. (In the conflict resolution field, we actually
call this process “conflict mapping” or “conflict analysis.”) In doing such an analysis
the reporting should be as objective as possible and an outside reader should not be
able to detect if the analyst has a particular viewpoint on the conflict. By doing this
preliminary analysis, one can get a sense ofthe availability of information on the case

GUIDEBOOK for Analyzing ECR Cases

311

of interest, and thus its feasibility as a case of study. Some cases may actually not be
appropriate for this type of analysis, either because information is extremely difficult to
collect, or because the window for focus is too vague to define adequately.

Become familiar with the Guidebook

As described earlier, the Guidebook serves as an analytic tool and as a new filing
system. As with any new filing system, one has to use it to start to remember its many
categories. This may mean extra trips to a particular file initially, but once its categories
are familiar, new information can be stored easily, and one will even subconsciously
begin to look for the existing categories of information.

Choose criteria that matter for your purposes

The Guidebook provides an exhaustive menu of criteria. This is desirable for
comparative case analysis. However, case analysis as well as other evaluation goals
may best be served by using a subset of criteria.

Consult multiple sources

Research is a scientific enterprise that requires an open, duplicable process. Otherwise,
it easily becomes just opinion and conjecture. Results must be both valid (i.e.,
indicators must closely reflect the true concept one is trying to operationalize and
measure), and reliable (i.e., not due to chance fluctuations or to the vagaries of a
particular source, but able to be dependably assessed by the same person at another
time and by other persons as well). For this reason it is important that for most
indicators in the Guidebook, one needs to crosscheck information in more than one
source. Some sources may corroborate each other. Other sources may be contradictory.
If the latter occurs, such divergence of opinion should be reported and is itself of great
interest.

A list of likely sources is listed for each criterion. These lists of suggested sources
emerged from the substantial piloting that the Guidebook has already received as a tool
for research and analysis. The media are an important source, and researchers should
consult relevant stories. These are both typically available in microfiche form through
most university libraries, and often in public libraries. Another rich source is the
internal and external public documents of parties, such as promotional materials,
annual reports, internal reports, and especially newsletters. Often these will be supplied

312

APPENDIX A

through a simple phone call or fax to a party. The federal Freedom of Information Act
requires that many documents be made available, however invoking it is usually
unnecessary, as most government agencies will happily provide copies with a simple
courteous request. Amazing information can be obtained through a phone call to a
Senator or Representative’s office staff, who make extra effort to see that constituent
requests for information (particularly government documents) are satisfied. Finally,
the internet has emerged as a powerful tool for research. Most parties have their own
websites and use them to express their opinions and policies. Government agencies
use them for making documents available. Draft settlements or working papers may
even be posted.

Weigh the advantages and disadvantages of using interviewing

In our original piloting of this project, we discouraged the use of interviewing in order
to limit costs. We wanted to demonstrate what could be accomplished under time and
budget constraints that precluded personal interviews. Interviewing also can be an
intrusion into the system being studied that can have its own effects. However, for
gathering some information, interviews have no substitute, and researchers may decide
that for their purposes it is worth the costs. However, the Guidebook has been
designed to be able to be completed without the use of interviewing. Strategies for
doing this type of research are not listed.

Be a sleuth

Often this information may not be available in obvious places. It may take a bit of
sleuthing and persistence to follow possible leads for certain sources. It may take
reflection and creativity to realize possible new sources to consult.

Be concise, but thorough in reporting

Once one discovers the wealth of information available with a mere keystroke, it is
tempting to cut and paste vast documentation into one’s report. Alternatively, one may
also be tempted to answer the large number of questions in as brief a way as possible.

Neither extreme is ultimately useful. Both analysis and comparison are best served by
concise summarizing for each indicator, usually from multiple sources, supplemented
with representative direct quotes. Please consult Chapters 4-7 for examples of cases

GUIDEBOOK for Analyzing ECR Cases

313

with what we consider to be an appropriate level of detail. Appropriate level of detail
may vary according to users' needs.

Cite properly and completely

Because of the importance of verifiability in ensuring reliable information, the
judicious use of direct quoting is encouraged, and correct and complete citation is
critical. Often the source of the information is as important a piece of data as what the
source actually said; in other words, analyzing what was said as an indicator of a
criterion cannot occur apart from considering who the source of the information was.
In piloting this Guidebook, it was found that the most helpful referencing style for this
type of analysis was the use of footnotes. Consult the case studies in Chapters 4-7 for
models of thorough citation.

ONE FINAL NOTE...

One final note before beginning: We as authors would like to receive your feedback.
This Guidebook has been an organic product, continuing to change with successive
rounds of feedback. Also, one of our general goals is to increase the number of cases
available for comparison, therefore we welcome the opportunity to view your
completed cases and to make them available to others. s Best wishes for the journey.

GUIDEBOOK for Analyzing ECR Cases

315

CASE REPORT FRAMEWORK

CASE INTRODUCTION

Cover Sheet

(1-3 pages; use bullets for lists)

Case Study:

Time period of case study evaluated:

Basic nature of dispute: (water rights, endangered species, etc.)
Issues in dispute:

Actors, and associated interests of each:

Attempted conflict resolution processes: (e.g., mediation, litigation,
policy dialogues) — Include details: If litigation, note court; if
administrative rulemaking, note agency promulgating rules; if
collaborative processes, note who convened, financed by whom,
who facilitated, who staffed; if legislation, note legislative body
involved.

Specific agreement, ruling, or other outcome focused upon here:

History

1. Case History Overview (In narrative form; 3-4 pages)

Provide historical context and chronological unfolding of case
developments.

2. Timeline of Major Events (1 Page)

What portion of this timeline will be focused on in this report?

316

APPENDIX A

Criteria Category I - Outcome Reached

Nature of the Outcome Analyzed.-

For clarity in this section, identify once again the nature of the conflict
resolution outcome being analyzed (i.e., negotiated agreement, court
ruling, legislation, administrative action) and the date, time (or period)
during which outcome was produced (e.g., court ruling by X federal
district court on May 10, 1998; negotiated agreements in 1997 and
1998, signed on May 10, 1998).

Characterize the outcome focused on in this
ANALYSIS:

I I Court Ruling (provide date and specific entity that took action)

I | Agency Ruling (provide date and specific entity that took action)

I | Agency rule promulgation

1~1 Legislation or other actions by elected bodies (city councils,
elected district boards, etc).

I I Negotiated Agreement

I I Other, Specify:

A. Unanimity or Consensus

This criterion seeks to assess the strength of approval for the
outcomes reached, the degree of dissension at the table, and the
absence of key parties.

Sources to Check: Media, web sites, newsletters, court reports.

Criteria Category I

GUIDEBOOK for Analyzing ECR Cases

317

Best Time to Assess : At time agreement is announced, re-
examine later for evidence of missing
party.

If a negotiated agreement,

was a decision rule (unanimity, consensus, majority) discussed? If
so, what was agreed upon?

when agreement was reached, was it: (check one)

□ Unanimous.

□ There were dissenters at table.

I I There were parties not at table, who left or walked out on
negotiations. Specify:

I | There were significant parties not at table at all.

□ Other. Explain:

If another outcome , (legislation, administrative ruling, court
ruling):

Document voting results related to the outcome (i.e., legislative
vote, vote of administrative body or decision of panel ofjudges. If
the decision of a single individual (one judge, an agency head,
etc.) note name, title, etc.).

B. Verifiable Terms

This criterion seeks to verify that consensus existed on the terms
of the outcome and that reaching the outcome was publicly
confirmed.

Outcome Reached

318

APPENDIX A

Sources to CHECK: Media, internet — Multiple sources

advised.

Best Time to Assess : After agreement is announced.

Was the outcome (check all that apply):

I I Written and formally signed

□ Oral (Specify who articulated the agreement, title or
affiliation, date, setting.)

LJ Terms accessible to interested parties and the public? (or
confidential). If yes, note sources.

□ Terms published in media or posted in public forum
(Federal Register or state equivalent, libraries, etc.)

C. public Acknowledgment of Outcome

This criterion verifies that reaching of the outcome was publicly
confirmed. [Note: record reactions of stakeholders to outcome in
category IV, Relationship of Parties to Outcome.]

Sources to Check: Media, internet — local access to press

may be helpful.

Best Time to Assess: After outcome made public.

Describe:

• Media coverage (note geographic breadth of coverage — local
paper, regional papers, “national” papers, such as the New
York Times)

• Internet

. Newsletters (e.g.. Western States Water Council)

• Professional Journals

Criteria Category I

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319

D. Ratification

This criterion assesses whether relevant governing bodies and/or
courts formally approved outcomes. Court rulings may require
follow up legislation to be implemented. Legislation may require
court approval. Assume any signatory to a negotiated agreement
would have to formally ratify it (e.g., vote ofboard, referendum
or resolution). Such action can occur before or after agreement is
reached.

1. Governing Bodies:

Sources to Check: Media, local access helpful

Best Time to Assess: Any time after, but easier at time

outcome made public

Check off governing bodies (councils, boards) needed to ratify the
outcome:

Constituency Ratification-Date/Forum 9 Type of Action 10

I I U.S. Congress

□

2 .

Outcome Reached

State legislature
Tribal councils
City council

Water district board (Irrigation
districts, conservancy districts, etc.)

Board of Directors of utility or
private firm
County Board of
Supervisors/Commissioners

Judicial Approval

Often this is required of legislation that was passed to address
a conflict that has been the subject of litigation. Was judicial
oversight required?

320

APPENDIX A

Sources to Check: Media, local access helpful, diverse

sources not needed. One source
confirming each is adequate.

Best Time to ASSESS: After agreement is announced.

Which court, if any, needs to approve the outcome ? (federal, state,
tribal courts?)

Jurisdiction:

For court rulings:

Sometimes a higher level of court is asked to review a lower level
ruling. If so, note here, with dates ofhearings and dates and
citation for final ruling:

For legislation, agency actions, and negotiated agreements:

A court may be asked to rule on an outcome’s legal legitimacy. If
so, note here. Also, a negotiated agreement may require court
review and approval. For instance, a negotiated agreement about
sharing water may require court approval and incorporation by
the courts into a water decree.

[Note: Subsequent government action to comply with a specific
outcome should be discussed under category V, Compliance. If a
prior court ruling exists with which this outcome must comply,
discuss compliance with that ruling under criteria III. G.l, Legal
Feasibility.]

Also, a prior ruling may have motivated outcomes, with which they
need to comply. If so, note prior ruling and legal citation here.

Criteria Category I

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321

[Note: Any outcome (legislation, administrative action,
negotiated agreement) may be subject to litigation and appeals to
higher courts. Note legal citations to such subsequent litigation
here. Also note legal challenges under criterion III.F, Feasibility/
Realism; IV. B. 3, Compliance with Outcome Over Time; IV. D. 2,
Stability/Durability, if relevant.]

Outcome Reached

322

APPENDIX A

Criteria Category II - process Quality

A. Procedurally Just

This criterion seeks to ascertain parties’ and others’ perceptions
of the justice of the process, i.e., was it fair, balanced, complete,
thorough in the sense both of issues and parties, and not
compromised by time constraints or power imbalances. This
includes both parties’ perceptions of fairness of the procedure and
parties’ satisfaction with the procedure, which research 11 suggests
is combined together by raters.

[Note: Distinguish these measures of procedural fairness, etc.
from “outcome fairness’’ which should be reflected under
category III, Outcome Quality. Distinguish comments and
perceptions about the outcome from those about the process.]

Sources to CHECK: Media (local papers helpful), texts of

agreements, stakeholder newsletters,
web sites, and promotional materials.
Public speeches by stakeholder
representatives or convener may be
helpful. Consider if certain parties may
be less adept at using media to make
their views known, and search for
alternative venues. This criterion
requires thorough information search
on each and all aspects listed below.
Must use multiple sources to get full
range of views from diverse
stakeholders. Do not base on “overall
impression’’ or one source. Ideally,
survey or interview parties during
process and/or after agreement reached
with procedural justice instrument. 1 '

Criteria Category II

GUIDEBOOK for Analyzing ECR Cases 323

BEST Time to Assess Directly following the process, when it is
prominent in the media. Follow up
verification may require a lag for it to
appear in newsletters, web sites, etc.

The first five dimensions of procedural justice are all essential to

the construct. Check for information on all dimensions below;
note if no information available or not applicable to case being
analyzed.

• procedure used was: (fair, useful, unfair, slow, rushed, etc.)

• all interests were taken into account [Interests should have
been outlined in “cover sheet” section.]

• time for decision-making/negotiation/action was
adequate/inadequate

. perception that citizen views or minority views were given
equal consideration

• perception that specific views or certain people’s views
carried more weight

. perception that emotional issues were/were not given time

• perception that underlying concerns were unearthed

B. Procedurally Accessible and Inclusive

This criterion seeks to ascertain the actual availability of three
components that contribute to perceptions of procedural justice:
first, did opportunities for public participation exist? Second, did
the public have access to information on upcoming participation
opportunities? Third, did the public have access to substantive
and technical information on issues? The first asks for details
(dates, timing, location, attendance, effectiveness) on any public
hearings, town meetings, surveys, hotlines, citizen boards, or
other forms of public outreach and polling. The second
component asks for notes on attempts to notify the public, and the
nature of the contact medium. The third component more
specifically addresses public access to information on issues.

Process Quality

324

APPENDIX A

SOURCES to Check: Sometimes easily accessible (if an

administrative rule), sometimes may
require persistence to obtain (local
presence may be helpful). If public
participation is mandated, formal
records on process are required. Check
media, agency files and documents,
promotional materials, agency web
sites (may summarize public meetings),
agency press releases on file. Federal
Register; also Environmental Impact
Reports (EIR) and Environmental
Impact Statements (EIS). EIS and EIR
are required to be publicly archived,
e.g. put in public libraries (See
appendix B). Sources such as
advertisements, public postings, radio
broadcasts, etc. will require local
investigation.

BEST Time to Assess: During process is best. (Certain forms

of public notice may be difficult to
locate after the fact). However, if public
participation is mandated, formal
records of process are kept.

1. Public Notice

For processes leading to the outcome itself: What were the public
notice requirements that apply to the process being analyzed (e.g.,
hearings require public notice; EIS process requires public
participation)? Certain processes, such as negotiation, may be
private or even secret and therefore public notice requirements do
not apply.

For subsequent ratification processes: Public hearings may come
later if a legislative body ratifies agreement. What were public
notice requirements for any subsequent ratification? Note such

Criteria Category II

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325

subsequent opportunities for public involvement also. Check for
various attempts to notify public:

• media

• notifying community leaders

• public signage

. public notices in library, or media
. announced in Federal Register

• other efforts to notify public (e.g., Special Master’s newsletter
to claimants in general stream adjudication)

2. Public Participation

As in item #1 above, (a) analyze for specific process that is the
focus, and (b) analyze for any ratification processes that occur
subsequent to the outcome.

Were citizens given the opportunity to express their views before
an outcome was achieved? Note dates of, timing of, location of,
and comments regarding attendance, effectiveness of:

• public hearings

• town meetings

• surveys

• hotlines

• citizen boards

• submitted comments, written (e.g. letters) and oral.

For subsequent ratification processes:

Were citizens given the opportunity to express their views during
the ratification process?

Note dates of, timing of, location of, and comments regarding
attendance, effectiveness of:

• public hearings
. town meetings

• surveys

• hotlines

• citizen board

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APPENDIX A

For court processes: Note —

how broadly the court allowed testimony — from many
affected parties orjust a few direct litigants?
which parties filed amicus (“friend of the court”) briefs? What
interests did they represent?

3. Access to Technical and Substantive Information on Issues

Indicate parties' access to technical and substantive information
on issues.

Information accessibility among stakeholders: (Direct participants
in process.) Did stakeholders share technical information or keep
it confidential? Was it only in the hands of one, or a few, parties?

Information accessible to public: Was information available in
public archives at the time of the process? (technical reports in
public libraries, websites, etc.)

Public policy assistance in acquisition of information: Note where
public policies may have assisted the public or stakeholders in
gaining information, e.g. Federal Freedom of Information Act,
open meeting laws, open record laws, “sunshine laws,” Federal
Advisory Committee Act of 1990.

4. Public Education

Were attempts actively made to educate the general public about
the problem, including its scientific and technical issues (beyond
merely making information accessible, as in item 3 above) as well
as its general context? Examples: Public forums to explain; utility
distributes flyers. [If these efforts represent a significant change in
how agencies deal with the public, note this under criterion V.E,
Transformation.]

C. Reasonable Process Costs

This criterion examines costs associated with th ^process being
analyzed, with cost information organized into three categories

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according to who bears the costs. Process costs are considered
“reasonable” when they are (or are perceived as) in proportion to
the magnitude of the conflict being addressed and the assets at
stake. For a complex multi-party dispute over a large river basin
involving millions of dollars in water rights, land and economic
activities, it would not be unreasonable to spend many hours and
hundreds of thousands of dollars on a process designed to resolve
the conflict. However, these same expenditures would likely be
seen as “unreasonable” for a two- or three-party dispute involving
neighboring irrigators.

Only costs incurred as part of the process are to be noted here.
Costs and cost-sharing agreements regarding the outcome
(agreement/ruling) and its implementation should be
noted in criterion III. A, Cost-Effective Implementation. See
appendix C for specific instructions of collecting and recording
cost information.

Costs are broadly defined to include monetary expenditures, staff
time, and other resources dedicated to the process. The process to
be analyzed is the one that led to the outcome that is the subject of
the research — e.g., the process of negotiating an agreement, of
drafting and enacting legislation, of litigating or of promulgating
an administrative rule.

Researchers should note actual data on costs of process, as well as
perceptions expressed regarding the costs of process and whether
they were “reasonable.” Actual or perceived agreements (if any)
on splitting the costs of the process also should be noted.

Sources to CHECK: Media, newsletters, communications

among and within stakeholder groups,
stakeholder, and court records on staff
time expended, mediation or other
records on meeting frequency and
duration. (Interviews with parties may
be useful.) Annual reports/reports to
stakeholders, constituencies.

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congressional staff in Washington,

D.C., and in local offices, congressional
committee and staff reports, GAO
reports (www.GAO.gov), lobbying
costs.

Best Time to ASSESS: Examine information generated while

process is ongoing and for a short time
after an outcome is reached.

1. Costs to Stakeholders Who Participated in Process

List each party. Describe actual monetary, time (actual time
spent in meetings, for instance), and other costs for each party
(e.g., costs of mediation services, lodging and travel to
participate in process, attorney’s fees). Document cost-sharing
agreements among the parties and actual contributions to
process costs made per these agreements. Note perceptions
also, such as “this process was so time consuming” or “travel
expenses to participate really added up.”

2. Costs Borne by Taxpayers

Court staff time, public agency staff time, and expenses — for
agencies not considered above as stakeholders (e.g., judge
serving as facilitator), legislative appropriations to support
process, comments on public/taxpayer costs, staff hours,
number of people devoted to process.

3. Costs Borne by Others

Often other parties (not direct participants, not supported by
tax dollars) bear expenses to influence the process. For
example, water or power rate increases to cover process costs,
fee increases to resource users, costs to parties excluded from
this process [being analyzed] in their attempts to influence
process (i.e., lobbying, media campaigns. . .).

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4. Splitting Process Costs

Describe formal arrangements (if any) on how process costs
will be shared among the parties and information on actual
contributions by the parties to process costs. These
contributions can take varied forms: payments to mediators or
facilitators, or technical experts; dedication of staff time to the
effort; use ofbuildings and equipment; etc.

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APPENDIX A

III

Criteria Category III - Outcome Quality

A. Cost-Effective Implementation

This criterion focuses on the costs of implementing the terms of
the agreement, court ruling, legislation, administrative action, or
other ECR outcome. It collects information that may be used
comparatively to assess whether or not an agreement /ruling took
a cost-effective approach to resolving the technical problems that
are part of the conflict and to implementing the terms of the
agreement. Implementation is considered cost effective if the
actions taken were undertaken in a manner that considered and
minimized the costs of accomplishing what was required. For
instance, in a case that required an additional 10,000 acre feet of
water to be made available for environmental restoration, cost-
effective implementation would produce that water in the least-
costly manner.

Note: Cost information is to be organized as: (1) costs to parties
participating in the process, (2) costs to the public (agencies,
courts, other costs paid through taxes), and (3) costs to others (not
participating in the process, not paid by tax dollars), such as water
utility ratepayers. Actual costs incurred, projected costs and
perceptions regarding implementation, costs are to be reported
under this criterion. Expenditures of staff, time, money, resources,
water, and other assets all “count” as costs. Only costs attributable
to implementing the outcome (i.e., the legislation, court ruling,
agreement, etc.) are to be analyzed here. Costs of the process go
under criterion II. C, Reasonable Process Costs. Researchers need
to carefully distinguish between costs attributable to the outcome
and more general changes in costs that would have occurred
anyway. (Comments on costs that specifically imply fairness, or
lack thereof, should also be noted under criterion IV. A,
Satisfaction/Fairness.)

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Consult Environmental Impact
Statements (EIS) if available, agency
reports analyzing costs, parties
internal cost analyses. Federal Office
of Management and Budget (OMB)
or General Accounting Office (GAO)
reports, if available. See appendix B
for website information.

Once terms of outcome are available,
although actual costs may not be
known until implementation is
complete. Parties’ perceptions of
future costs for implementation are
best ascertained when outcome is
achieved and there is media coverage.

1. Summary of Cost-Sharing Arrangements

• How are costs of implementing the outcome allocated
among parties; including staff time, water, and money?
(Example: The court directed Party A to pay $10 million
to Party B, in four $2.5 million annual payments with
the first due on Jan. 1, 1999).

. What guiding principles, if any, were used to determine
cost sharing? (e.g. wealth of different parties, ability to
levy taxes)

. What specific cost sharing arrangements apply?

(Example: Party A agreed to contribute 1,000 acre-feet
per year of water, Party B to donate 500 acres of land
and Party C to pay $5 million.)

• Financial aid to be contributed by government, other
parties.

• Prepare a table of costs allocated under the terms of the
outcome, to each party, to the degree to which such
information is available.

GUIDEBOOK for Analyzing ECR Cases
Sources to Check:

Best Time to Assess.-

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2. Costs to Parties Who Participated in the Process

• Actual costs incurred since outcome — in past, not
process costs.

— Actual data on dollar figures (e.g., dam under
construction — party A and B have each already
contributed $20 million).

— Comment on costs already incurred. [Note

comments that imply fairness or lack thereof under
category IV, Relationship of Parties to Outcome.]

• Direct participants’ projected costs still to be incurred as
a result of the outcome (agreement/ruling).

• Perceptions regarding costs to parties (note source and
affiliation of source quoted)

3. Costs Borne by Taxpayers

• Costs incurred by public agencies that are not parties, by
courts, by regulators

. Costs of court time

— Actual costs incurred since agreement/ruling - in
past; not process costs.

□ Actual data on dollar figures

□ Comments on costs already incurred. [Note
comments that imply fairness or lack thereof
under category IV, Relationship of Parties to
Outcome.]

— Projected costs still to be incurred as a result of the
outcome (agreement/ruling).

— Perceptions regarding costs to taxpayers (note source
and affiliation of source quoted).

4. Costs Borne by Others (not direct participants, not taxpayer
costs)

Direct parties in a conflict may negotiate an agreement that
not only affects their own well-being but also affects others
who were not party to the negotiations. Costs may be
imposed on others, in order to ease the burden placed on the

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direct parties to the agreement. Shifting implementation
costs onto other parties (such as taxpayers and ratepayers)
should be noted here.

• Actual costs incurred since agreement — in past; not
process costs.

Actual data on dollar figures.

- Comments on costs already incurred.

• Projected costs still to be incurred as a result of the
outcome — agreement/ruling (e.g., impacts on
ratepayers in form of change in water or electric power
rates).

• Perceptions regarding costs to others (note source and
affiliation of source quoted).

5. Costs Considered in Implementation Decisions

Cite evidence that implementation decisions considered
costs and selected lower cost alternatives.

• Cite opinions expressed by stakeholders and observers.

• Cite examples of actual implementation decisions.

B. Perceived Economic Efficiency

Economic efficiency, as used in cost-benefit analysis to evaluate
projects and policies, means that the benefits of a specific
activity (such as building a dam or regulating a pollutant)
outweigh the costs. In order to rigorously assess economic
efficiency for the outcome of an environmental conflict, it
would be necessary to describe all of the relevant costs and
benefits and to quantify them in dollars. However, less
formally, economic efficiency asks “was it worthwhile?” “Are
the costs justified by the benefits?” This criterion addresses the
“was it worthwhile” issue from the perspective of stakeholders
and observers.

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APPENDIX A

1. Perceptions of Parties Participating in Process

• Cite parties’ perceptions regarding benefits to
themselves from outcome and benefits to other
stakeholders.

• Record statements that compare benefits received to
costs expended or that comment on “was it
worthwhile?”

2. Perceptions of Observers

• Cite descriptions ofbenefits to parties, communities,
larger society.

• Cite any attempts to quantify and compose benefits and
costs and the results of these analysis.

• Cite opinions expressed by others on “was it
worthwhile?”

C. Financial Feasibility/Sustainability

How will the money to pay for implementation of the outcome
be obtained? This criterion assesses how the agreement
addresses issues of securing funding for implementation and
ensuring that economic incentives encourage compliance and
support implementation.

While the previous criterion III. A, Costs of Implementing
Outcome, addresses costliness of implementation, this criterion
focuses on how the money will be obtained. Researchers should
focus on actual or planned financial arrangements. Financial
arrangements specify who pays for what, monthly or annual
payment obligations, and the time period over which payments
are made. Researchers must carefully distinguish financial
considerations related to the outcome from those that would
have occurred regardless of the outcome.

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Comments on perceived fairness of cost sharing should be
recorded elsewhere, under criterion IV.A.5,

Satisfaction/Faimess (for stakeholders), or under category III,
Outcome Quality (for public perceptions). Economic
implications for viability of communities should be noted under
criterion III.D, Cultural Sustainability/Community Self-
Determination.

Sources to Check: Terms of the

agreement/ruling/legislation,
commentary on these terms, media
archives.

Best Time to Assess.- After agreement/ruling/legislation is
made public.

/. Plans to meet financial obligations: How does each party
with a financial obligation plan to obtain the money to meet
its obligation? (Examples: County will raise property taxes
ten percent; Utility will raise water rates five percent; State
will issue $10 million in bonds.)

2. Ability to meet financial obligations: Is there evidence that
these parties actually have the ability to pay their share of
the costs? (Examples: City A already has raised taxes to pay
its share; Irrigation district members voted down measure to
raise water rates to cover their costs.)

3. Long-term feasibility of financial obligations: How are costs
spread over time? A common tactic to achieve an agreement
on cost sharing is to shift costs away from current water
users, tax payers, and rate payers to the future. Deferring
financial costs, cleanup costs, or endangered species
mitigation costs (by not assigning them to current parties in
the agreement) is an example of a strategy that may not be
feasible when the time comes to cover those deferred costs.

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APPENDIX A

4. Incentive Compatibility: Are the pricing incentives in the
outcome consistent with achieving the goals of the
outcome? Do water prices, electricity prices, and other
prices support implementation of the
agreement/ruling/legislation? (Example: Were water prices
changed to promote conservation for cases where
conservation was a key goal?)

5. Loans: What types of loans are involved, or are planned?
(Examples: Federal loan to City to build water treatment
plant; State loan to farmers to install water conservation
devices.)

6. Unfunded Mandates: Are there “unfunded mandates”? —
Does outcome require monitoring or other follow-up by
agencies, but not provide funding for such follow-up?
(Example: Court orders state agency to conduct water
quality monitoring, but state does not appropriate money for
new staff needed.)

7. Assumptions regarding ability to follow through: Note
unrealistic assumptions about other parties’ ability to follow
through (personnel, resources, etc.)

D. Cultural S u stain ability/ Community

Self-Determina tion

This criterion asks for a record of communities affected by the
agreement/ruling and an assessment of the types of potential
effects. These include demographic and economic effects, such
as changes in patterns ofjobs, income, taxes, etc. These also
include changes in patterns of ownership, changes in decision-
making authority or jurisdiction, and changes in the social or
cultural “lifeways” of the impacted communities or the relative
balance of these lifeways (the “cultural mix”). Examples of

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“lifeways” include irrigated farming, ranching, community
gardens. Native American cultural practices, Hispanic ditch
associations (acequias), small town life. Expressed concerns
about community and cultural impacts and actual indicators of
impacts both should be reported.

Note: Researchers must attempt to separate out changes
produced by the agreement/ruling analyzed from changes that
would have occurred even without this specific outcome. Only
the former should be discussed here. Carefully note sources for
each comment/perception (i.e., potential effects will occur from
whose perspective?). If the source of information for any of
these effects is one of the parties, the need to check other
sources (triangulation) is heightened.

Multipliers are an economic tool used to measure how
economic impacts spread through a local economy. Suppose
that an outcome being analyzed has caused the loss of 10,000
acres of irrigated farmland and a decline of $900,000 in farm
income. This loss will have a ripple effect in the county which
can be calculated using multipliers. The county income
multiplier for farming is used to calculate changes in overall
county income due to a drop in farm income. An employment
multiplier is used to calculate how many job losses will occur in
the county due to that loss in farm income. A business activity
(or output) multiplier is used to calculate how much local
business revenues will decrease due to the loss in farm income.
Multipliers are developed by public agencies and are available
on a county-wide basis for rural areas and on a metropolitan
area scale for cities. If you use information that relies on
multipliers in your case study write up, carefully note the
source, the type of multiplier used, the size of the multiplier
used, and the magnitude of economic impacts estimated using
that multiplier.

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APPENDIX A

Sources to CHECK: Outcome itself, journals, stakeholder

newsletters, publications of national
and state water resource associations,
promotional videos, and professional
newsletters. Media, EIR, EIS (discuss
local economic impacts), local
government or tribal authority
studies.

Best Time to ASSESS: Potential for these effects and

perceptions of these are accessible
immediately upon agreement/ruling;
actual changes will require time
passage.

1. Affected Communities

List all communities, towns, counties, Native American
reservations, agricultural/irrigation districts affected by
outcome (bearing consequences of outcome).

2. Potential Effects

Be careful to distinguish comments/perceptions from actual
data on impacts.

Demographic

• population loss/gain — if perceived as linked to
agreement/ruling (e.g., immigration in and out)

. crime rate (e.g., casinos or high growth comes to town
and people perceive is due to outcome analyzed)

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• change in residency patterns within the community
(e.g., more outsiders moving in, break-up of
neighborhoods, ethnic enclaves)

Economic

• jobs/unemployment rates

• tax revenues/tax base

• property values

• income patterns/poverty rates (change in average
income and differential between wealthy and poor —
income gaps)

• change in ownership of land or water

(e.g., less local ownership of water rights, land)

• cost of housing

• cost of living (community gets “yuppified”)

CommunityAocal self-determination

• check all sources for expressions of concern over
affected communities’ ability to determine their own
future

• tribal sovereignty — Check sources for concern over
tribal government giving up power/control to outsiders

• legal recourse — Check for concern over limitations on
community’s future ability to litigate in order to protect
themselves or to affect change

• decision-making authority/jurisdiction (loss or gain of
local control). Examples: Decision making switched to
city or federal agency; State agency took over water
management from local district

• evidence of changes in control over economic future

• changes in local access to land, water, other resource
availability/access

• evidence of changes in control over social future

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APPENDIX A

Cultural impacts

• changes in cultural mix, loss/change in “way of life”

• change in access to cultural sites (ceremonial sites,
burial grounds), control over artifacts and sites

E. Environmental Su stain abiliity

Sustainability suggests practices that allow for preservation of
current resources in such a way that future generations will have
comparable resources available to them. This criterion assesses
the degree to which the outcome considers drought,
environmental factors and other natural contingencies, either
through direct language in the agreement /ruling or through
participation of environmental advocates (agencies and
organizations) in crafting the outcome and its implementation.
The criterion also asks what natural resources are committed for
implementation, over what time frame, and with what
environmental impacts.

Sources to CHECK: Outcome (ruling, agreement, etc.)

itself, comments by parties reported
in media. Media may also note
participation by environmental
groups.

Best Time to Assess.- Outcome and media coverage is best
assessed after outcome is made
public. However, assessing
“adequacy” will require time passage.

1. Environmental Impacts

Note: Certain outcomes are required to explicitly address

environmental impacts. See appendix B for notes on NEPA,

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Clean Water Act, and Endangered Species Act, etc., and
information on potential requirements.

Does outcome address existing problem? Was
agreement/ruling intended to address existing environmental
problem? Describe. If so, did the agreement/ruling address
this environmental problem successfully?

Does outcome address environmental impact? Did (and
how did) parties address environmental impact that may
result from the agreement/ruling, such as endangered
species concerns?

Does the outcome shift an environmental problem to a new
location or new set of affected interests? An example is an
outcome that cleans up water quality in one stretch of a
river, but creates a water shortage or water quality problem
for downstream water users.

Does outcome provide for resource acquisition?

2. Natural Contingencies

• Does Outcome consider how parties will jointly address
natural contingencies (e.g., how will parties address
water shortages during drought)?

• What natural contingencies could affect implementation
of the Outcome? Have these contingencies been taken
into account in the preparation of outcome (e.g.,
drought, flooding, earthquake interruptions of water
supply, fire, non-native species invasion, pest
infestations)?

Note: Processes and forums established in the agreement or
ruling to deal with uncertainties should be noted under
criterion IV. D.3, Stability/Durability.

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APPENDIX A

3. Projected Resource Use

• What changes in natural resources availability or
quality could affect the Outcome (agreement, ruling,
etc.)? (Example: federal water project will contribute
10,000 AF(acre-feet) per year to fisheries water needs.)

• What are the projections of resource use over time
under the Outcome?

- Land, acquired from whom? Any environmental
impacts?

- Water, from what sources? Any environmental
impacts?

— Electric power, from what sources? Any
environmental impacts?

4. Consideration of Environmen tal Concerns

Environmental issues may not always have an advocate
during the process, particularly if there are no local
environmental groups with resources to be present at all
relevant disputes. Note crossover with criterion II. A,
Procedurally Just.

• Did the parties crafting the Outcome (legislation,
administrative action, negotiated agreement) contact
and negotiate with environmental agencies and try to
get assurance on Endangered Species Act compliance
and regulatory compliance?

• Were environmental groups active in the process and/or
were public agency environmental watchdogs active in
the process?

• Were there local environmental advocates present?

- If not, were there other groups active in the
negotiations and advocating environmental
sustainability?

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F. Clarity of Outcome

Agreements, rulings, and other Outcomes that lack clarity may
face problems in implementation. This criterion assesses
whether the agreement/ruling was clearly worded and
performance standards were specified. It assesses the presence
of misunderstandings and differences in interpretation (if any),
and examines Outcome language for ambiguity and checks
Outcome and implementation for well-defined baselines and
performance standards (e.g., water use, stream levels,
conservation efforts).

Note: Consider tradeoffs with flexibility. Comments on lack of
clarity may also have relevance for criterion IV. C, Flexibility,
as parties make trade-offs between concretizing details and
leaving room for flexibility.

Sources to CHECK: Outcome itself, independent

commentaries and reviews (e.g., in
law reviews)

Best Time to Assess.- When Outcome is made public and as
implementation proceeds. Ideally,
best assessed after implementation
has begun but can be assessed in a
predictive way from agreement and
commentaries. Baselines and
performance standards can be
assessed any time after outcome is
made public.

1. Language of Outcome

Note: It is not necessary to review the terms of the Outcome
as a whole. However, check for the presence of certain

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APPENDIX A

items. This information may be available through secondary
sources (e.g., commentaries).

Performance standards/baseline conditions

Check Outcome for wording having to do with performance
standards or baselines (minimum flows, lake levels, etc.)

Were baseline conditions used as reference points in the
Outcome well defined? Examples: If a party agreed to cut
back water use 20%, what baseline will they cut back from?
If a party agreed to double the available habitat for a
species, what base amount of habitat are they going to
double?

Other examples to consider include hydrologic conditions
(stream levels), water use limits and conservation efforts
(e.g., 10% reduction in water use)

. Were performance standards and timelines specified
(e.g., build the dam, canal or water conservation
infrastructure by specific date)?

. Any evidence of varying interpretations of standards
during and after signing or completion of the
agreement/ruling?

Discrepant versions of ou tcome

Note any mention of “the X version” or “the Y version”
(different recordings of terms), or differing translations due
to more than one language.

2. Perceptions of Ambiguity

Note any comments on ambiguity of the Outcome,
agreement, or ruling. — according to which parties? — note
from outside observers?

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3. Confusion/Controversy During Implementation

Were there misunderstandings regarding the Outcome
required, or differences in interpretation? During
implementation, did ambiguities or varying interpretations
come to light?

G. Feasibility/Realism

This criterion addresses whether the Outcome is realistic in its
assumptions and can be implemented in a practical sense, given
legal, political, and technical considerations. Does it consider
the legal and political context? Are the scientific and technical
assumptions valid?

Note: Researchers are not asked to make legal, political, or
scientific assessments themselves, but rather to note discussions
of such types of feasibility in media and other sources.

Sources to CHECK: Media, reviews of and commentary

on Outcome itself.

Best Time to Assess.- After Outcome is announced, for

things specified in the outcome. For
things that must be formulated later
(e.g. monitoring teams) assessment
can only occur then.

1. Legal Feasibility

• consistency with existing legislation and administrative
policies

. consistency with applicable court rulings
. Was the Outcome challenged on legal grounds?

. How were problems fixed (e.g. amendments)?

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APPENDIX A

2. Political Feasibility

• Did (will) legislature/Congress pass needed legislation?

• For each party, could Outcome bejustified to their
constituency?

• Was a monitoring team assembled?

- Is the proposed representation for monitoring bodies
realistic and feasible?

— Feasibility of representativeness for group that
monitors implementation (e.g.. The outcome may
require environmental representative on the
monitoring team, but environmental representatives
spread too thin. The outcome may specify
community representatives to oversee technical
decisions, but no compensation is provided for time
involved so they are unlikely to be able to afford to
participate.)

• Any indication that actions required for implementation
may be politically difficult?

3. Scientific and Technical Feasibility

• Was the scientific and technical basis for the
agreement/ruling perceived as credible in the
scientific/technical community? Was the “science
right”? (Note: Parties’ perceptions should be described
under criterion IV. A. 4, Satisfaction/Fairness.)

• Note discussion of unrealistic assumptions about the
supply of the resource or the effectiveness of
technology in the future

H. Public Acceptability

Apart from the stakeholders themselves, the general public may
judge the Outcome. Many argue that an Outcome should
receive “public scrutiny.” This criterion assesses whether the
Outcome was perceived as fair by the public and by political
leaders.

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Note: Comments by stakeholders on fairness should go under
criteria II. A, Procedurally Just, or IV. A, Satisfaction/Fairness.
Discuss public scrutiny by official bodies under I.D.
Ratification.

Sources to CHECK: Media, Newsletters of parties.

Best Time to Assess.- After outcome is announced.

1. Did public perceive outcome as fair?

2. Did the general public and political leaders perceive
outcome as feasible from legal, political, technical and
financial perspective ?

I. Efficient Problem-Solving

Negotiation theory suggests that efficiencies can be created
when the CR process allows for collaborative problem-solving.
If parties can work together, they can recognize opportunities
for mutual gain, and collaborate to “expand the pie.”

Exchanges can be made that benefit everyone without anyone
losing anything (“elegant trades” 14 ). An efficient agreement is
one where parties have not missed opportunities for “elegant
trades ,” 15 and where parties have “created value” by problem-
solving together.

1. Perceptions of Parties Participating in Process

• Cite parties’ perceptions regarding new options,
increased resources, or multipliers (“value”) created
through collaborative problem-solving

• Cite parties’ accounts of “elegant trades” or joint gains

• Cite parties’ perceptions that there were “missed
opportunities” for joint gains, win-win solutions,
elegant trades, etc.

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2. Perceptions of Observers

• Cite descriptions of new options, increased resources,
or multipliers (“value”) created through collaborative
problem-solving

• Cite observers accounts of “elegant trades”

• Cite observers’ perceptions that there were “missed
opportunities” forjoint gains, win-win solutions,
elegant trades, etc.

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Criteria Category IV -
Relationship of Parties to Outcome

A. Satisfaction/Fairness -As Assessed By
Parties

Research 16 has found that outcome satisfaction and outcome
fairness are highly related in peoples’ minds, and so they have
been combined here. This criterion seeks to assess parties’
perceptions of satisfaction with and fairness of the Outcome
immediately upon completion or announcement, either overtly
expressed or expressed through behavior, such as a through
refusal to sign or endorse.

Note: Need to check across various stakeholders. Multiple
source use is important here. Distinguish between expressions
of satisfaction with Outcome (to be noted here) and those about
its subsequent implementation. Note the latter under criterion
IV. D, Stability/Durability. Note if comments are made by
spokespeople or by individuals.

Sources to Check.- Media, wire services, stakeholder
newsletters, web sites, and other
stakeholder promotional material.
Some parties may have completed or
commissioned reports. Scholarly
sources may include interview
results.

Best Time to Assess.- After enough time has passed for
parties’ summaries or reports to be
prepared, though media can provide
an initial barometer of reactions when

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APPENDIX A

Outcome is announced and also while
formal responses are being prepared
(e.g., formal summaries, EIS
responses, court appeals). Interviews
may be helpful here.

1. Satisfaction/Dissatisfaction with outcome

Check all sources for: expressions of
satisfaction/dissatisfaction with provisions of the outcome
(economic, emotional, symbolic), did parties get what they
“deserved,” “ people benefited (or suffered) equally,”
comments on fairness of the outcome. Comments on
process should be noted under criterion 11. A., Procedurally
Just.

• Boycotting: Did any parties at table refuse to sign,
refuse to show up at press conferences, a signing
ceremony, or other symbolic event after the outcome
was announced? [If evidence of dissatisfaction,
quote/cite carefully, listing reasons.]

• Legal recourse: Were there new lawsuits filed, or
threats to litigate?

. Partial Satisfaction: Were there indications that

outcome met some (but not all) of the parties’s needs
(i.e., only partial satisfaction)?

2. Fairness of cost sharing

Comments about fairness of cost-sharing arrangements and
the burden on one party versus the other. Watch for
language such as “We gave up so much!” (implies the party
is bearing what they consider large and unfair costs — in
terms of money, water, or other claims they relinquished);
or “They (other party) really made out well!” (implies
perception of “imbalance” in how benefits and costs are
distributed). Any statements regarding benefits also provide

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insights about costs because costs and benefits are two
sides of the same coin. For instance, a party who did not
get a benefit they believe they deserve feels that they have
incurred a cost - the foregone benefit. Conversely, parties
who make out better than they expected (incur lower costs)
feel as though they have benefited from an outcome.

3. Perception of scientific/technical credibility

Did parties perceive scientific/technical basis for Outcome
as credible (e.g., ruling based on uninformed science)?

B. Compliance with Outcome over Time

Agreements/rulings/legislation compel parties to engage in
certain behaviors and refrain from other behaviors. This
criterion assesses whether parties did indeed engage in, or
refrain from, actions as prescribed by the Outcome. Indicators
include any subsequent litigation initiated or threatened in order
to bring a party into compliance, the subsequent renewal of
mediation or negotiations due to perceived noncompliance,
records of compliance kept by any monitoring entity, and the
inclusion of any provisions in the Outcome for verifying
compliance (procedures, mechanisms, entities).

Note: The researcher is not being asked to independently assess
compliance. Also consider that dissenters who did not sign an
agreement (or who opposed legislation or a ruling) may still be
bound by it.

Sources to CHECK: Media, journals, party or third party

reports. Information on provisions
and mechanisms for verifying
compliance is detailed in acts and
rules. Once monitoring bodies are
established, their records may be
available.

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APPENDIX A

Best Time to ASSESS: Provisions in Outcome can be

assessed immediately upon
completion. The presence of
provisions and/or mechanisms for
verifying compliance can be
addressed immediately. Subsequent
litigation can be assessed shortly after
an agreement or settlement is
achieved and can continue over time.
Records of regulatory or monitoring
organizations or other records kept to
verify compliance can only be
assessed after time has passed.

1. Provisions/Mechanisms in Outcome for Measuring

Compliance

• Are there follow-up documents/procedures required to
verify compliance?

• Are there ways to verify compliance? Are there
adequate ongoing mechanisms set up (and funded) to
verify compliance?

2. Compliance Record-Keeping

• Any internal record keeping by parties of compliance?
Do they indicate compliance? Note degree of
compliance/noncompliance and which parties.

• Records of regulatory/monitoring organizations? Do
these records indicate compliance?

3. Subsequent Actions Related to Compliance

• Subsequent litigation initiated or threatened by parties
that are bound by agreement? Note: Here only include
litigation initiated or threatened in order to bring
another party into compliance with ruling or
agreement.) Litigation initiated because dissatisfied

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353

with ruling or agreement should be noted under
criterion IV. A, Satisfaction/Fairness.

• Subsequent mediation, negotiating session due to
perceived non-compliance? List specific reasons for
new sessions.

C. Flexibility

While no outcomes can be written to anticipate all future
contingencies, outcomes can be designed to be responsive and
flexible. This criterion assesses an Outcome’s ability to be
adapted to changing conditions. Indicators assess details of any
subsequent modifications, the process specified in the original
Outcome for modification (if any), and any unachieved but
desired modifications, particularly if the barrier to modification
was in the Outcome itself.

Sources to CHECK: Information on modification

procedures available in Outcome
itself. Subsequent modifications may
be noted in media, parties’ papers,
newsletters, and web sites; also board
minutes or commissioned reports.

Best Time to Assess.- Provisions in Outcome can be noted
upon completion. Ability for
Outcome to be adjusted to changing
conditions can only be judged after
time has passed.

1. Provisions/Mechanisms in Outcome

• Was a process to achieve modification specified in
original Outcome (i.e., modification must be
unanimous, must be in writing)?

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APPENDIX A

• Were there obstacles to modifications in the Outcome
itself (e.g., unanimity required for change; modification
requires re-ratification by all stakeholders)?

2. Subsequent Actions Related to Modification Outcome

• Describe the process.

• Were terms of outcome modified?

• Who initiated the change?

• What circumstances prompted modification?

• Did all parties agree?

• Was process cumbersome/costly to get modifications?

D. Stability/Durability

This criterion addresses the ability for the Outcome to persist
over time. It includes two types of indicators: those indicators
that look at characteristics in the Outcome itself and in any
accompanying framework for implementation that may affect
stability over time; and indicators that actually note evidence of
stability or instability over time. Indicators in the first category
include stability-promoting incentives in the Outcome such as
penalties, deadlines, or benchmarks, identification of a party (or
parties) as responsible for implementation, and provision of an
ongoing forum for future conflict resolution. Indicators in the
second category, noting actual instability, include non-
compliance, resumed litigation or introduction of counteracting
legislation, expressions of hostility, communication breakdown,
and coercive behavior.

Sources to CHECK: Implementation guidelines and other

predictive indicators may be found in
the outcome itself, or in agency press
releases, legislative committee
testimony and addenda or third party
sources. Decreases or increases in

Criteria Category IV

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355

stability over time may be reported in
the media.

Best Time to ASSESS: Predictive indicators can be measured

when outcome is reached. Long-term
indicators require time passage after
outcome, before assessment.

Note: Asking implementation questions of court rulings may
have questionable validity, as rulings often are not designed to
address future implementation of their implications, but only to
rule on questions of law. Also, stability may be inferred from
favorable assessments in category V, Relationship Between
Parties.

1. Provisions/Mechanisms in Outcome
Responsibility for implementation

Which party (or parties) have been assigned responsibility
for implementation? Is there an identifiable implementation
team or other mechanism for taking responsibility for
adequate progress over there?

Ongoing forum for problems

Is there an ongoing forum the parties agreed to turn to when
problems and conflicts arise?

Incentives built into outcome to promote stability

Check agreement for:

• penalties for non-compliance

• deadlines for specific actions to be completed

• positive rewards for progress; benchmarks

• carefully staged timing of meeting parties’ needs to
keep them “invested” in successful implementation?

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APPENDIX A

Breakdown particulars of timing as required by
agreement: When are each party's needs met? At the
outset? At the end of some period? Staged over the
course of implementation?

• mechanisms for assuring inclusivity in future decision-
making affecting terms and obligations.

2. Subsequent Actions Related to Stability/Durability

• If Outcome did not assign responsibility for
implementation, were responsibilities subsequently
assigned? If so, how, where, when, etc. (See
Responsibility for Implementation under item 1 , above.)

. If no forum for problems was specified in original

outcome, was a forum subsequently established? (See
Ongoing Forum for Problems under item 1, above.)

3. Indicators of Instability over Time

• non-compliance

• litigation is resumed months or years after agreement
reached

. hostility expressed in press, or other public forum

• shifting alliances, solicitation of new allies (evidence of
polarization)

. legislation introduced/proposed to counteract or
undermine agreement

. communication breakdown

. coercive behavior to extract concessions, payoffs, from

others

Note: Many indicators of long-term stability also may be

found in category V, Relationship Between Parties.

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357

B Criteria Category V -

Relationship Between Parties

A. Reduction in Conflict and Hostility

A common measure of improvement in conflictual relationships
is a reduction in hostility. This criterion captures a sense of
whether the conflict is de-escalating or escalating, either in
actions, rhetoric or in tone of communication. Various factors
from the literature on conflict escalation, such as the presence or
absence of the possibility for non-alignment (indicates level of
polarization) also are included as indicators. 17

Note: This analysis is most useful if a baseline from the past is
presented for comparison. It is best to use multiple sources to
present range of impression of this criterion.

Sources to Check: Media, publishing from parties, web

sites or newsletters, public reactions,
documents, congressional testimony,
secondary sources writing about this
conflict

Best Time to Assess : Assess at points both before or during

agreement process and then again
after Outcome is reached. It is often
difficult to assess whether or not the
conflict is escalating or deescalating
upon settlement (such an assessment
will likely be mixed), and waiting for
time to pass may be useful.

Check the following indicators for evidence of escalation or de-
escalation:

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APPENDIX A

• Check rhetoric and tone in parties’ communications.
What type of rhetoric is “acceptable”? “Out of
bounds”?

• Is language used to describe the conflict from public
platforms and in the media one of reasonableness or
one of escalated, hostile rhetoric? Note both before and
after Outcome.

• Are people being pressured to take sides or express
opinion, or is it accepted for people/parties to be
“undecided” or “on the fence?” (The former indicates
polarization). Are people concerned about being
sanctioned?

• How broadly are the disputants’ lives affected? (where
they shop, drink coffee, etc.)

. Hostile actions (blockades, shouting matches, threats)

• Public initiatives, legislative actions used to escalate or
de-escalate conflict (e.g., joint projects as indication of
de-escalation and collaborative tone).

. Character assassination, public put-downs.

. Any comments on the role of a

convenor/facilitator/mediator in facilitating positive
relational change? Indicate direct discussions of
relationship change, citing source(s).

• Describe channels or modes through which parties
interacted. For instance, did they only interact through
the court or through other channels as well?

• Note references to other parties’ credibility and acting
in a trustworthy manner. Note discussions of “acting in
good /bad faith". Do parties perceive that other parties
are doing (or will do) what they say they are doing (or
will do)?

B. Improved Relations

Theorists have sought to conceptualize “peace” or “good
relations” as something beyond the lack ofhostilities. 18 What
represents “good relations” in terms of the presence, rather than

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359

the absence, of something? This criterion seeks to capture
changes in the way parties see and relate to one another that
may reflect the essence of successful resolution . 19 To note
change, one also must first note the nature of the original
relationship as a baseline for comparison. Indicators to explore
for change include discussions of the relationship itself, as well
as the tone of communication among the parties (hostile,
conciliatory), the effort parties expended to protect themselves,
and their sense of trust as indicated by the necessity of lack of
enforcement clauses or other formalities.

Note: The subjective nature of relationship assessment makes it
highly dependent on the type and number of sources consulted.
Multiple sources should be sought and each should be cited
clearly. Researchers should cite evidence and not rely on their
own inferences.

Sources to Check: Language of Outcome itself. Media,

correspondence between parties,
speeches by party representatives,
web sites, promotional materials,
third party reports.

Best Time to Assess: Assess early on for baseline and then

again upon completion of outcome.

1. Media Evidence of Relationship Quality

Check general media for evidence of relationship quality
(good, bad, mixed):

• What baseline or starting point is used in making
comparisons over time? What was the relationship like
between parties as they entered this process?

» Note evidence of change in relationship quality during
or as a result of the process/Outcome of interest.

• Characterize relational barriers to future hostile actions.

• Characterize relationship currently (at time of analysis).

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APPENDIX A

2. Improved Understanding

Note evidence of a “more realistic and more sympathetic
understanding of other stakeholders’ positions and what
their response might be to various scenarios or options .” 20

3. Improved Communication

• Is there any correspondence between parties? Please
characterize.

• Note various sources’ observation on the tone of
communications among parties.

Note: Good interpersonal relationships among
representatives are necessary, but not sufficient.

4. Trust/" Good Faith ”/ Climate

• Evidence of trust:

— How much effort/expense do parties exert to
protect themselves from one another (“Trust” is a
handshake instead of a written contract. Is this bad
practice or just evidence of trust?)

- No enforcement clauses

- No written agreement (note, these two could
indicate a “bad” or “incomplete” agreement)

— Change in enforcement mechanisms to less formal
or less frequent

• Did the process create “a climate in which side-by-side
problem solving was possible” 21 ? Were parties willing
to share true priorities?

• Note discussion ofparties’ ability to “follow through”
on commitments. Include any sense of the “tone” of
such discussions. Did assessments of others’
competence in good faith improve?

• Was atmosphere during process one of “reciprocity”
(e.g., where “good faith” efforts were reciprocated,
where favors were offered, where give and take was

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361

uncalculated, but in general balanced)? Note: Increases
in general level of reciprocity in larger community
should be noted in category VI, Social Capital.

C. Cognitive and Affective Shift

This criterion is designed to provide evidence of the
phenomenon that many practitioners (and even parties) note a
shift in parties’ framing of the conflict and/or the relationship.
Indicators include noting the ways parties refer to one another
and the way they describe or explain the other parties’ behavior
(pre- and post- agreement). Building on literature from family
systems theories, it also includes a bit of narrative analysis of
the way “stories” are told about the conflict — do narratives
change (pre- to post-) in their description of causality,
interactions, values, etc.

Sources to Check: Internal party documents, newsletters,

commissioned reports, fundraising
brochures, media reports on a “new”
relationship or process. Often will
appear that parties’ report on their
own changes (self-reflection) rather
than noting change in others.

Best Time to Assess: Upon completion of Outcome, and

possibly even during the resolution
process if it refers to perceptions of a
new process and a new relationship
that leads to reaching a constructive
outcome. For most of these
indicators, note the baseline state
(i.e., before the resolution process
began or early in it) and compare this
to the state after the Outcome.

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APPENDIX A

• Note evidence of shift in parties’ “framing” of the
conflict or the relationship.

. Note evidence of shift in parties’ affective responses to
the conflict or relationship (e.g., angry, resigned,
hopeful, excited, agitated).

• Adjectives used to explain other parties’ behavior. Note
before and after agreement. Note in primary and
secondary sources adjectives used to describe others’
behavior.

• Have parties changed in how they think/consider other
parties (e.g., now may involve tribal party
representatives or environmental representatives from
beginning of process on subsequent issues)?

. Do parties or observers describe changes in attitudes?
Changes in public values?

. Cite evidence of views reflecting a shift in parties’
sense of their interdependence.

• To what do parties (or observers) attribute any shifts
observed?

• Some further dimensions to use in exploring the
narratives parties tell about the conflict . 22 Note changes
in the storytellers construction of:

— time (static vs. fluctuating, nouns vs. verbs,
ahistoric vs. historic)

- space (non-contextual vs. contextual)

- causality (cause vs. effect)

- interactions (intrapersonal vs. interpersonal,
intentions vs. effects, symptom conflicts, roles vs.
rules)

— values (good intent vs. bad intent, sane vs. insane,
legitimate vs. illegitimate)

— telling-style (passive vs. active, interpretations vs.
descriptions, incompetence vs. competence)

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D. Ability to Resolve Subsequent Disputes

This criterion addresses the degree to which the relationship
between parties is handling subsequent related conflict, such as
problems with implementation of the Outcome. Indicators
include evidence that problems are handled constructively, that
an ongoing relationship has emerged in which it is possible to
address future concerns, and possibly the emergence of an
ongoing forum for conflict management. This considers the
parties’ subsequent joint “track record” in terms of actions
rather than simply perceptions.

Sources to Check: Media reports on process or on

subsequent actions, parties’ press
releases, public speeches, and third
party reports.

Best Time to Assess: After time has elapsed. Must be

subsequent to Outcome itself. May
involve disputes arising during
implementation.

Note: It is best not to rely solely on inference, but to document
responses in verifiable sources (which may be contradictory).
This section is for an actual track record, i.e. actions. Note
perceptions in criteria V.C, Cognitive Shift and V.E,
Transformation.

Note absence or presence of new problems:

• Evidence that problems which arise are handled in a
constructive manner

• Successive rounds of negotiations? (This can indicate
intractable problems or the comfort level of parties in
dealing with one another).

• Calling a mediator back in to the process, exchanging
representatives

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APPENDIX A

. Did the Outcome itself make it necessary to have an
ongoing relationship (e.g., negotiation of future
agreements required by initial agreement)? Characterize
this subsequent relationship.

. Cite evidence of use of ongoing forum for conflict
management. Note: Actual use of this forum or
creation of a new forum should be noted here. If a
forum was agreed to in the original Outcome, this
should be noted under criterion IV.D,
Stability/Durability.

• Cite observations of parties’ informal commitment to
working things through “in relationship” rather than
resorting to more hostile forms (as in going to the
courts, or an “end run” to Congress).

E. Transformation

Some argue that conflict presents an opportunity for individual
and collective moral growth . 23 More specifically, this moral
growth is toward a social vision that integrates individual
freedom and social conscience, and integrates concerns over
justice and rights with concerns about care and relationships . 24
This moral growth can occur if conflict resolution processes
help people to change their old ways of operating and to achieve
new understanding and new relationships through conflict.
Indicators include evidence of empowerment (i.e., the parties’
renewed sense of their own capacity to handle challenges),
evidence of recognition (i.e., empathy for and
acknowledgement of others’ circumstances ) 25 and evidence of
other major shifts in perception, (e.g., of relationship context, of
paradigm, of social and political context, of tools and solutions.

Note: Perceptions of ability to achieve results and resolve future
challenges should be noted here. Assessment of actual “track
record” should be noted under criterion V.D, Ability to Resolve
Subsequent Disputes. Changes in perceptions of the relationship
between parties should be noted in criterion V.C, Cognitive
Shift.

Criteria Category V

365

Media, observers’ reports, internal
party documents, newsletters,
commissioned reports, fundraising
brochures, media reports on a “new”
relationship or process. Often will
appear as parties’ reports on their
own changes (self-reflection) rather
than as noting change in others.

Upon completion of outcome, and
possibly even during the resolution
process if it refers to perceptions of a
new process and a new relationship
that leads to reaching a constructive
outcome.

Empowerment: Cite examples of parties’ recognition of new or
renewed capacity to resolve current or future disputes, and
achieve future joint results.

Transformation of perception of the conflict and relationship:
Note mention of major shifts in perception of relationship, or
larger (environmental, social and political) context of the
conflict and the relationship. Language to watch for is on the
order of the following examples - “a paradigm shift,” “a sea
change,” “a new era,” “a new ethos,” etc.

Transformation of policies/procedures: Note any jettisoning of
past tools, models, algorithms, frameworks, operating policies,
procedures, and any calls for new ones.

Recognition of the other: Note evidence of empathy for and
acknowledgment of other parties’ circumstances and contextual
constraints.

GUIDEBOOK for Analyzing ECR Cases
Sources to Check:

Best Time to Assess:

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APPENDIX A

• Cite evidence of parties’ understanding of the others’
circumstances. Is there any evidence of empathy with
other parties’ experiences?

. Note examples where a party may have acknowledged
the legitimacy of another party’s concerns either to
them directly or at least via a public format (media,
public forum).

Criteria Category V

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367

Criteria Category VI - Social Capital

This category includes criteria that address positive changes that occur
in the larger system in which this conflict is embedded: Changes that
go beyond the relationships between these particular stakeholders
and/or beyond the particular issues in this conflict. These changes are
grouped loosely together as Social Capital. [Note: Changed
relationships between same stakeholders on same issues should be
noted in category V., Relationship Between Parties. ]

Social capital, like other forms of capital, is a potential resource that
must be drawn upon to realize its value. It is the capacity for
individuals to command resources that comes from having social
connections. However, social capital is not inherent to individuals;
rather, it is a characteristic or possession of relationships and
communities . 26 It has been defined as potential assistance relationships
between people , 27 “generalized reciprocity,” 2 * the capacity for
individuals to command scarce resources by virtue of their membership
in networks or broader social structures , 29 the aggregate of these actual
or potential resources linked to a durable network , 30 or even the
capability for trusting strangers . 31 Related literature on consensus-
building 32 leads one to the conclusion that social capital can be seen as
a system’s (i.e., a community’s) increased capacity for responding that
comes from cooperation and coordination.

Several of these criteria are outlined below. Given the relatively new
nature of the increased theoretical focus on the construct of social
capital, these criteria reflect the varying ways the category of social
capital has been defined. Though it may be difficult to tie the
development of social capital to a particular conflict resolution process,
monitoring for change on these indicators may at least suggest changes
in the large system that are correlational.

Sources to CHECK: Media, internal party documents,

newsletters, announcements of

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APPENDIX A

trainings or other activities, annual
reports, reports to stockholders or
memberships.

Best Time to ASSESS: Social capital clearly can be assessed

after the catalyzing conflict resolution
processes have been completed, but
can often be discerned during the
process itself. Certain facilitative
conditions for social capital (such as
the presence of networks and trust)
may even exist prior to the conflict
resolution process’s initiation.

A. Enhanced Citizen Capacity to Dra w on
Collective Potential Resources

1. Aggregate of resources

Aggregate of actual and potential resources that can be

drawn upon from one’s network, [hard to measure amount,

but ability to draw can be noted - see next few criteria]

2 . Potential assistance relationships

New partnerships and projects between same parties.

3. Generalized Reciprocity

• Evidence that assistance is provided across groups (e.g.,
environmental group or local government helps mining
company get loans to make needed improvements.

• Evidence that groups and people across groups are
“scratching each others backs.”

• Likeliness that one might call upon contacts in other
groups for a favor.

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B. INCREASED COMMUNITY CAPACITY FOR

Environmental/Policy Decision-Making

1. Aggregate of resources

• Coordinate meeting times so that people can attend both
groups’ meetings

• Evidence that parties have “divided up” tasks (e.g.,
information gathering, publicity).

• Seek out common avenues, e.g. sharing a web site,
sharing a public forum, sharing office space, sharing
publicity outlets.

• Public education across conflict lines (e.g., writing in
each other's newsletters, guest speaking, visits to
schools — separate and/or together).

• New decision-making structure (e.g., commission)

2. Increased System Efficiency

• Information shared

• Meeting process in place; follows prior conflict
resolution process

• Processes utilize time efficiently; quick responses to
problems

• Use of prevention strategies and long-range planning
(e.g., proactive identification of problems)

• Cost sharing and joint financial arrangements

3. Increased Capacity for Cooperation

• Evidence that can utilize:

— New Communication (How?) Know how to
communicate with those in the other groups.

— New Networks (Who?) Know whom to speak to in
other groups - have “connections”

— New Knowledge (What?) Knowing “who does
what” may be useful

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APPENDIX A

• Increased capacity for handling conflict (either within
the community/system itself or with judicious use of
conflict resolution professionals)

• Greater conflict resolution knowledge; skills

• Use of training in conflict resolution, team-building,
etc.

. New and different people /groups involved in the
decision-making system (e.g., previously under-
represented groups)

4. Increased System Capacity for Responding to External
Challenges

. Evidence that connections and relationships established
during initial conflict resolution are reactivated.

• Subsequent dispute or debate over new/different issues
shows previously involved groups working together at
outset.

5. Increased Information Flow

• Is it seen as normative to share information rather than
to withhold it?

. Prestige given to those who share information
(Widner).

. Cite references made or evidence that more people
“know” things (e.g., about water, land use, etc.).

. Increased information infrastructure.

- Evidence that information is more broadly
available.

— Evidence that people share information, have more
ways/capacity to share information.

- New newsletters, websites, etc.

. Traditional power holding groups (e.g., government
agencies, corporations) more communicative, send out
community newsletters , hold open houses, hold tours,
etc.

Criteria Category VI

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C. Social System Transformation

1. Assistance and Support Provided to General Community

• Donations to community funds, events

. In-kind donations (e.g., irrigators provide seeds to

public schools in nearby municipalities; environmental
organization representatives do guest speaking at water
department event).

2. More Resilient Social/Political/Economic System

• Economy rebounded more quickly to crisis

. Unified, coordinated response of diverse groups to
social crisis (e.g., hate crime, natural disaster)

3. Increased Civic Discourse

• Town Meetings, etc.

• Face to face discussions

. Drama, humor on debated issues (rather than
antagonism)

. More openness to dialogue among traditional power-
holding entities (e.g., government, corporations,
utilities)

4. Creating a learning system/ “double-loop learning ” 33

• Evidence that parties (and community) know how to
organize themselves (collectively, not just within
parties) — Town meetings called, community agenda
set, etc.

• Ongoing links between community leaders and between
community organizations (e.g.. Urban League, Valley
Planning Commission) where members jointly search
out what they “need to know”.

Social Capital

372 APPENDIX A

• Focus on prevention and proactivity (e.g., proactive
data collection and monitoring; tax incentives for using
new approaches).

. Organizations’ agendas and missions are renegotiated

Items 5-8 do not so much define social capital, but rather both
result from it and also facilitate its development.

5. Enhanced Networks

(Putnam 34 says these should be “horizontal associations”)

• Stability/ Transience of community (numbers moving
in and out)

. Note change in awareness of how to contact others in
other groups.

• Increased linkages across conventional divides of race,
class, profession, etc.

6. Perceived Mutual Reciprocity/Assistance Relationships

Cite evidence for beliefs in existence of help and/or

cooperation from other parties.

7. Perceived Interdependence

Cite parties’ observations of interdependence , common fate

or linking, (e.g., “we’re all in this together” “we'd all

lose/win”).

8. General Trust

• Note any mention in media, editorials, etc., or any
actual survey data showing trust in neighbors, schools,
government, other institutions.

• Note any mention of degree of trust in strangers and
ability to spontaneously work together for common
purposes.

Criteria Category VI

GUIDEBOOK for Analyzing ECR Cases

373

NOTES

1 Sources leading to criteria development are not cited in this Guidebook. For full

review and citations, see Chapter 2, this volume,

2 Readers interested in more detail on these topics should refer to Chapter 2 and

Chapter 9.

3 See Chapter 8.

4 See Chapter 2.

5 See Chapter 3.

6 Judith E. Innes, "Evaluating Consensus Building," in Consensus Building

Handbook, eds. Lawrence Susskind, Sarah McKearnon, and Jennifer Thomas-
Larmer, 631-675 (Thousand Oaks, CA: Sage Publications, 1999).

7 A CDROM version of the Guidebook that allows for simply "filling in the blanks” is

available from the first author.

8 Comments and case analyses can be submitted to Tamra Pearson d'Estree, Conflict

Resolution, University of Denver, 2199 S. University, Denver, CO 80208, or
Bonnie Colby, Dept, of Agricultural & Resource Economics, University of
Arizona, PO Box 210023, Tucson, AZ 85721.

9 Forum: City Council meeting, session of Congress, Board of Directors meeting, etc.

10 Vote, referendum, resolution

11 E. Allen Lind, and Tom R. Tyler, The Social Psychology of Procedural Justice

(New York: Plenum Press, 1988).

12 For example, Janice A. Roehl, "Measuring Perceptions of Procedural Justice,”

(doctoral dissertation, George Washington University 1988).

13 Based on Janice A. Roehl, "Measuring Perceptions of Procedural Justice,” 1988.

14 Howard Raiffa, The Art and Science of Negotiation (Cambridge, MA: Harvard

University Press, 1982).

15 Ibid; see also Lawrence Susskind and Jeremy Cruikshank, Breaking the Impasse:

Consensual Approaches to Resolving Public Disputes (New York: Basic Books,
1987).

16 E. Allen Lind and Tom R. Tyler, The Social Psychology ofProcedural Justice,

1988.

17 Jeffery Z. Rubin, Dean G. Pruitt, and Sung Hee Kim, Social Conflict: Escalation,

Stalemate, and Settlement (2 nd ed.) (New York, Colin McGraw Hill, 1994).

18 Adam Curie, Making Peace (London: Tavistock, 1971); Johan Gailtung, Peace by

Peaceful Means: Peace and Conflict Development and Civilization (Thousand
Oaks, CA: Sage Publications, 1996).

19 Further discussion of this criterion category may be found in Tamra Pearson

d'Estree, “Achievement of Relationship Change,” in The Promise and
Peiformance ofEnvironmental Conflict Resolution, eds. Rosemary O’Leary and
LisaB. Bingham, 111-128 (Washington, DC: Resources for the Future, 2003).

Notes

374

APPENDIX A

20 Judith E. Innes, "Evaluating Consensus Building," 1999.

21 Lawrence Susskind and Jeremy Cruikshank, Breaking the Impasse: Consensual
Approaches to Resolving Public Disputes, 1987.

22 Carlos E. Sluzki, “Transformations: A Blueprint for Narrative Changes in

Therapy,” Family Process 31 (1992): 217-230.

23 Robert A. Baruch Bush, and Joseph P. Folger, The Promise of Mediation:

Responding to Conflict Through Empowerment and Recognition (San Francisco:
Jossey-Bass, 1994).

24 cf. V. Held, Justice and Care: Essential Readings in Feminist Ethics (Boulder, CO:

Westview, 1995).

25 Robert A. Baruch Bush, and Joseph P. Folger, The Promise of Mediation:

Responding to Conflict Through Empowerment and Recognition, 1 994.

Shawn MacDonald, “Social Capital and Its Measurement” (Unpublished
manuscript, George Mason University, 1999).

27 James S. Coleman, “Social Capital in the Creation of Human Capital American Journal of

Sociology 94 (supplement), (1988): S95-S120; James S. Coleman, Foundations of Social
Theory (Cambridge, MA: Harvard University Press, 1990).

28 Robert D. Putnam, "The Prosperous Community: Social Capital and Public Life,”
American Prospect 13, (1993): 35-42; Robert D. Putnam, Bowling Alone:
America’s Declining Social Capital Journal of Democracy 6(1), (1995): 65-78.

29 A. Portes, "Social Capital: Its Origins and Applications in Modern Sociology,”
Annual Review of Sociology 24 (1998).

30 Pierre Bourdieu, “The Forms of Capital," in Handbook of Theory and Research for

the Sociology of Education, ed. J. Richardson (Westport, CT: Greenwood Press,
1986).

Francis Fukuyama, Trust: Social Virtues and the Creation of Prosperity (New
York: Simon & Schuster, 1995).

32 Judith E. Innes, "Evaluating Consensus Building,” 1999.

33 Chris R. Argyris, Robert D. Putnam, and D.M. Smith, Action Science (San Francisco:

Jossey-Bass, 1985).

Robert D. Putnam, "The Prosperous Community: Social Capital and Public Life,”
1993.

Notes

APPENDIX B

FEDERAL POLICIES AFFECTING
ENVIRONMENTAL CONFLICT RESOLUTION

The Resource, Regulatory and Planning Frameworks

Kathryn Mazaika

A general overview of the federal laws and major policies provides a use-
ful starting point to generate ideas and strategies for research. Every federal
agency must respond to a host of environmental laws as it plans to implement
projects. The National Environmental Policy Act (NEPA), specific sections of
the Endangered Species Act (ESA), the Clean Water Act (CWA), the Clean
Air Act (CAA), the Resource Conservation Recovery Act (RCRA), the Com-
prehensive Environmental Response, Compensation, and Liability Act
(CERCLA) and their amendments are among them. These laws provide
ready-resources for information to evaluate an environmental conflict resolu-
tion effort using the criteria described in this book. Among these laws, NEPA
requires the broadest analysis (addressing issues covered by the other Acts)
and the production of environmental documents for public review. In addition
to the broader-based laws, organic acts for land and resource management
agencies such as the National Forest Management Act (NFMA), the Federal
Land Policy and Management Act (FLPMA), and the National Park Service
Organic Act are other potential sources of information on public involvement,
and the level of detail that documents will cover.

This appendix highlights specific issues to consider as you seek informa-
tion for the ECR case analysis. While the laws and implementing regulations
provide one framework through which a community or project must navigate,
they too are subject to debate and reflect the differences in changing admini-
strations and ideologies. Even though the basic legal frameworks remain un-

376

APPENDIX B

changed, it is worthwhile to stay abreast of policy shifts in how they are im-
plemented. Recent efforts to alter public input to forest projects, endangered
species impacts, and mining are examples. 1 It is also important to bear in
mind that there are many other potential sources of information within state
and local laws and other regulations for the geographic area in which the pro-
ject is located.

National Environmental Policy Act (NEPA) and Clean Air Act § 309

NEPA requires all federal agencies to prepare a detailed statement on pro-
posed legislation, regulations, and other major federal actions significantly
affecting the quality of the human environment. The statement should discuss:
(1) the environmental impact of the proposed action; (2) unavoidable adverse
environmental impacts; (3) alternatives to the proposed action; (4) the rela-
tionship between local short-term uses and the maintenance and enhancement
of long-term productivity; and (5) any irreversible commitments of resources
should the proposed action be implemented. 2 NEPA also requires all federal
agencies to develop implementation procedures that guide how they consider
the environmental impacts of their decision-making processes. 3 Section 309
of the Clean Air Act directs the Environmental Protection Agency to review
and comment on these statements of environmental impact, and refer to the
Council on Environmental Quality those proposals it deems unsatisfactory
because of the impacts the project poses to public health and welfare or envi-
ronmental quality. 4 There is greater potential to identify documents and activi-
ties related to the criteria when the project involves a federal sponsor. NEPA,
the implementation regulations, and the Forty Most Asked Questions Con-
cerning the NEPA regulations provide the framework for public participation
and the baseline scope of the environmental impact analysis. 5 Where land
management laws apply, specific elements of the analysis will also be ad-
dressed.

Because environmental impact statements and assessments (documents)
and the review processes conducted to comply with NEPA require describing
the affected environment and the potential impacts of a project, a variety of
information can emerge that is responsive to the ECR review criteria. The
scope of the public input and participation can provide clues into both how the
outcome was reached and its quality. Ideas about the process quality may be
evident in the way that various parties were able to express their concerns in
public comments and how the project sponsors) addressed them. Sections
within the “affected environment” of a document can provide a sense of the
outcome quality because it will include discussions on impacts to resources
(water, wildlife, air, land), culture, and social environment. The comments
and response to comments sections will similarly provide insights into the
public acceptability of a project. Discussions on cumulative and reasonably

Federal Policies Affecting Environmental Conflict Resolution

377

foreseeable direct and indirect impacts may provide insights into the criteria
focusing on sustainability by extending into the future the impacts considered.
Taken together the documents produced to comply with NEPA are a readily
available public source of information when a project or process constitutes a
major federal action (MFA) and may significantly affect the environment.
MFAs could include timber sales, highway widenings, Park Service manage-
ment plans, renegotiating water contracts, or land transfers.

Regulations and policies pertaining to NEPA change from time to time
and a brief review of the latest policies is worth consideration. Two central
websites (the Environmental Protection Agency’s National Environmental
Policy Act and Council on Environmental Quality (CEQ) in Washington, DC)
provide general information as well as updates on changing policies. 6 A more
thorough review of changes in case law, legislation, and regulations would be
available through NEPAnet’s Case Law Review, and legal research. Among
the policies and guidance the EPA includes in reviews of environmental im-
pact statements are “Environmental Justice in 309 Reviews” and “Pollution
Prevention/Environmental Impact Checklists for NEP A/309 Reviewers”. The
CEQ also makes available to federal agencies a “Memorandum on Incorporat-
ing Pollution Prevention into NEPA Documentation”. These documents may
provide the case reviewer with a sense of the degree to which project propo-
nents have considered pollution prevention and environmental justice, and the
degree to which the review criteria have been addressed.

In addition to environmental assessments and impact statements, it is pos-
sible to locate similar NEPA-type documents produced in response to NEPA-
type state legislation and policy. A comprehensive review of state laws, poli-
cies, and regulations addressing biodiversity can be found in Defenders of
Wildlife’s Saving Biodiversity . 7 This publication provides a list of the types
of impact assessments states required as of 1995. 8 This document may be es-
pecially helpful in locating information for projects that do not include a fed-
eral component. Another resource on state law and policy is available online
through the State Environmental Resource Center (SERC). 9 Through SERC’s
site it is possible to stay abreast of state policies and legislation, including
trends.

Endangered Species Act

Three sections of the federal Endangered Species Act (ESA) may provide
ideas when searching for potential sources of information pertaining to envi-
ronmental sustainability. 10 Section 4 of the ESA outlines the criteria the Sec-
retaries of Interior and Commerce should consider when determining whether
to list a species as either threatened or endangered. 11 Factors such as threat-
ened or actual modification or destruction of habitat or range; disease or pre-
dation; ovemse for commercial, recreational, scientific or educational pur-

378

APPENDIX B

poses; inadequacy of existing regulations; or other natural or manmade factors
which threaten its continued existence may justify listing a species as threat-
ened or endangered. The public can also petition the Secretary to either add or
remove species from the list. Information pertaining to a species’ listing
would be available in the Federal Registrar.

Section 7 requires all federal agencies to consult with the Secretary and
ensure that any actions they authorize, fund or carry out are not likely to jeop-
ardize the continued existence of any threatened or endangered species, or
destroy or adversely modify critical habitat of such species. 12 If a federal
agency is uncertain about the presence of listed species in their project area, it
will request the Secretary’s assistance to determine the likelihood, and prepare
a biological assessment should data suggest its presence. The Secretary will
review the biological assessment and follow the consultation with a biological
opinion of its findings. These procedures are detailed in a consultation hand-
book finalized by the Fish & Wildlife Service and the National Marine Fisher-
ies Service. 13 If the impact is in conjunction with a major federal action,
NEPA will also apply and, an environmental assessment or impact statement
will also be available for public comment and review. These documents
should be available for review from the U.S. Fish & Wildlife Service (FWS)
or the National Marine Fisheries Service, who implement the ESA in the re-
gion where the project is located.

Section 10 grants the Secretary the authority to permit certain actions oth-
erwise prohibited under the ESA. 14 Under this section, the Secretary through
the FWS can permit the incidental taking of listed species as long as a habitat
conservation plan accompanies the application for a permit. Parties other than
federal agencies typically use this approach. The habitat conservation plan
must discuss the likely impact, the steps taken to minimize and mitigate the
impact as well as the funding available to support these plans, any alternative
actions considered with the reasons that they were not chosen, and other
measures the Secretary deems appropriate. Habitat conservation plans and
environmental impact documents (written in response to issuing the Section
10 permit) would be available for public review and comment.

Both the Department of Interior and the U.S. Fish & Wildlife Service pro-
vide information through their websites in addition to information located in
the Federal Register pertaining to species listings, habitat conservation plans
and incidental take permits. The U.S. Fish & Wildlife Service maintains an
Endangered Species Homepage that would be a good starting point for obtain-
ing copies of the Endangered Species Act and relevant policies and proce-
dures. 15 FWS also maintains a website on the endangered species Habitat
Conservation Planning (HCP) program. 16 This comprehensive website in-
cludes an HCP overview, Frequently Asked Questions, Questions and An-
swers on the “No Surprises” Policy, “No Surprises” Myths and the Endan-
gered Species Act, as well as contact information and other policies.

Federal Policies Affecting Environmental Conflict Resolution

379

Two additional sources of information on state endangered species law
and its scope are available in Defenders and in Goble et al. 17 These documents
may be useful in developing an understanding of the requirements a state im-
poses, in addition to federal endangered species law.

Clean Water Act

The federal Clean Water Act provides similar opportunities for public par-
ticipation as it regulates decisions affecting water resources. Three sections in
particular' may provide insights into the environmental sustainability of a de-
cision, as well as opportunities for public input, and thus a measure of how
these criteria might be addressed in an environmental conflict resolution ef-
fort.

Section 319 Nonpoint Source Pollution Control

Although the Clean Water Act is a delegated program. Congress recog-
nized the need for greater federal leadership when it amended the Act in 1987
to include a section that addresses nonpoint source (NPS) water pollution. 18
Nonpoint source pollution has diffuse sources of water pollution that originate
from many undefinable sources, and which normally include agricultural and
urban runoff, in addition to runoff from construction activities and forestry
practices. 19 Section 319 provides financial assistance in the form of grants to
states, territories, and tribes to support nonpoint source programs. These funds
might be used to provide technical assistance, develop and implement water-
shed demonstration projects, or assess the success of these projects. Through
the nonpoint source water pollution grant program communities have come
together to identify their watersheds, assess NPS impacts, and cooperatively
develop plans to address these water quality problems.

Conference proceedings may be useful sources of information on water-
shed plans developed in the area where a conflict resolution analysis takes
place. The EPA also provides access to information on this program through a
Nonpoint Source Pollution website. 20 Through the Publications and Informa-
tion Resources website one can obtain a copy of Section 319, which describes
the program, and numerous other publications, including two volumes docu-
menting successful 319 programs that produced a variety of solutions to non-
point pollution. Through its libraries, the EPA also provides access to a
wealth of documents relating to water quality programs. 21 One such document
lists opportunities for public involvement in nonpoint source control. 22
Among the noted activities are volunteer monitoring, water conservation,
household management, and forming community-based forums.

380

APPENDIX B

Section 303(d) Total Maximum Daily Loads (TMDLs) Program

Through Section 303(d) of the Clean Water Act the Environmental Protec-
tion Agency expects states to identify and rank water-quality limited waters.
In these situations effluent limitations established elsewhere in the Act have
not been sufficient for these water bodies to achieve applicable water quality
standards. The integrated process of developing total maximum daily loads is
intended to create a link between water quality standards assessment and wa-
ter quality-based control actions. Through public notice and hearings the pub-
lic has the opportunity to help identify and prioritize targeted water bodies
and help identify the most feasible and implementable treatment strategies.
Once again, through a website maintained by the EPA, it is possible to access
information and updates about the TMDL Program. 23 New developments in
the program as well as case studies and program guidance are available
through this website.

Section 404 Wetlands and Waters of the United States

Section 404 of the Clean Water Act established programs to regulate the
discharge of dredged and fill material into waters of the United States, includ-
ing wetlands. 24 Activities that are regulated under this program include fills
for development, water resource projects (such as dams and levees), infra-
structure development (such as highways and airports), and conversion of
wetlands to uplands for farming and forestry. 25 Under this program, no dis-
charge of dredged or fill material is permitted if a practicable alternative ex-
ists that is less damaging to the aquatic environment or if the nation’s waters
would be significantly degraded. Permit applicants must show that they have:
(1) taken steps to avoid impacts to wetlands, (2) minimized the potential im-
pacts, where they were unavoidable, and (3) provided compensation for any
remaining, unavoidable impacts through activities to restore or create wet-
lands. Individual permits are needed for activities posing potentially signifi-
cant impacts; general permits issued at a nationwide or regional level allow
activities that will have minimal adverse effects.

The Environmental Protection Agency and U.S. Army Coips of Engineers
jointly administer Section 404 of the Clean Water Act. The EPA develops and
interprets the environmental criteria for evaluating permit applications, deter-
mines the scope of geographic jurisdiction, approves and oversees State as-
sumption, identifies activities that are exempt, reviews and comments on in-
dividual permit applications, has the authority to veto the Corps’ permit deci-
sions (Section 404[c]), can elevate specific cases (Section 404[q]) for review,
and enforces Section 404 provisions. The Coips administers the day-to-day
program (including individual permit decisions and wetlands jurisdictional

Federal Policies Affecting Environmental Conflict Resolution

381

determinations), develops policy and guidance, and enforces Section 404
provisions.

Within fifteen (15) days of receiving all information supporting an indi-
vidual permit application, the Corps issues a public notice. The public notice
should describe in the permit application the proposed activity, its location
and potential environmental impacts. Public comments are invited for a 15 -
30 day period, depending on the proposed activity. The Corps and other inter-
ested federal and state agencies, organizations, and individuals review the ap-
plication and comments, and the Corps determines whether an environmental
impact statement is needed to permit the action. Citizens may request that the
Corps hold a public hearing, though this is not normally done according to the
EPA. More often, the Corps evaluates the permit application and issues an
environmental assessment and statement of finding. These documents are then
available for public review.

The public can also participate in volunteer wetlands monitoring pro-
grams. 26 The EPA expects to provide technical assistance to states, tribes, and
NGOs by making skilled personnel available to cany out necessary wetlands
monitoring tasks. One example of such an effort is Frogwatch USA, estab-
lished in February 1999 to help researchers track populations of frogs and
toads. The EPA’s Volunteer Monitoring Home Page discusses methods and
tools to monitor, assess, and report on the health of water resources, and pro-
vides access to software and automated information systems used to manage
monitoring data. 27

The Wetlands Walk Manual, available as an Adobe Acrobat file, 28 pro-
vides citizens with opportunities to learn about the value of wetlands and to
collect information and data that helps identify trends in wetlands health and
location.

Through the 404 permit process, public hearings, and review of environ-
mental documents the public has the opportunity to participate in decisions
affecting wetlands resources. Volunteer opportunities provide the chance to
learn through hands-on experience. The opportunity for public input and to
protect resources through these processes should provide some clues into both
the availability of documentation and the potential depth of analysis one
might expect to find as you review a conflict resolution effort.

Organic Acts & Land Management

Three acts and their implementing regulations are worth considering when
reviewing environmental conflict resolution efforts. These acts, like NEPA,
specify a process and framework through which environmental impacts are
assessed, disclosed, and communicated to the public. Land management plans
in conjunction with the environmental assessment or impact statement can
provide a sense of how issues of environmental sustainability were consid-

382

APPENDIX B

ered, and the degree to which the public participated in the decision making
processes around proposed land uses.

Forest Service Planning & the National Forest Management Act
(NFMA)

The National Forest Management Act, its implementing regulations and
the Forest Service’s NEPA implementing regulations found in the Forest Ser-
vice Manual and Handbook provide insights into the scope of analysis one
can expect to find in land management plans and the accompanying environ-
mental documents, as well as the depth of public involvement in crafting the
proposed management directions. 29

Forest planning and its accompanying environmental impact analyses have
been the subject of much recent review and revision. In November 2000, the
Department of Agriculture (Forest Service) promulgated national forest land
resource management planning regulations that included expanded opportuni-
ties for public input and analyses for ecological, social and economic sustain-
ability. 30 Later in December 2002, following a change in administrations, the
Department of Agriculture proposed another modified set of rules for forest
planning and management. 31 According to the Forest Service’s website on
NFMA’s proposed planning rules the public comment period closed April 7,
2003. The website also notes that the Forest Service received nearly 200,000
comments, and is currently reviewing them to make adjustments to the plan-
ning rule. 32 Seeking updates on the status of these implementing regulations
would be helpful here to follow how earlier expansions on public participa-
tion, and ecological, social, and economic sustainability fare.

Land and resource management planning regulations specify the content
of forest plans, including the resources it should address, and ways to include
the public in the planning process. The Forest Service’s NEPA implementing
procedures further specify a process for public input that determines the ex-
tent of public interest and plans for public involvement, including methods to
inform the public as the process unfolds. To the maximum extent possible, the
Forest Service seeks to integrate the forest planning requirements with that of
NEPA. Among the common elements of NFMA and NEPA, respectively, are:
(1) proposed action/purpose and need; (2) possible management prac-
tices/alternatives; (3) environmental effects/environmental impacts; (4) public
participation/scoping and review of environmental documents. Therefore,
when reviewing a conflict resolution effort, one can turn to both the land and
resource management plans for details on the content and depth of resources
considered, and the NEPA document for details and disclosure of environ-
mental impacts and public comments. The EPA’s review and comments on
the environmental documents pursuant to Section 309 of the Clean Air Act,
moreover, will provide a sense of the degree to which it finds the proposed

Federal Policies Affecting Environmental Conflict Resolution

383

plan and document adequately disclose and assess environmental impacts.
Taken together, these documents and supporting public records can simplify
one’s search for the major issues and the degree to which they were addressed
within these frameworks.

Bureau of Land Management & Federal Land Policy Management Act
(FLPMA)

The Federal Land Policy and Management Act of 1976 created the Bureau
of Land Management (BLM), and declared it the policy of the United States
that: “...the public lands be retained in Federal ownership, unless as a result of
the land use planning procedure provided in this Act. it is determined that dis-
posal of a particular parcel will serve the national interest....” 33 FLPMA also
gave the BLM planning authority that included a periodic inventory to assess
public lands and their resources for current and emerging conditions. 34 Con-
gress, moreover, made it clear that these public lands should be managed for
multiple use and sustained yield in a manner consistent with other public land
use planning. 35 Through its land use planning, acquisition and disposition au-
thority BLM manages the lands that had previously remained in the public
domain.

Land use planning regulations for resource management planning include:
identifying issues, developing planning criteria, analyzing the management
situation, formulating alternatives, estimating the impacts of the alternatives,
selecting a preferred alternative, selecting a resource management plan, and
monitoring and evaluating it. 36 These regulations clearly mirror NEPA re-
quirements. Moreover, a policy statement earlier in the planning regulations
specifies that, “approval of a resource management plan is considered a major
Federal action significantly affecting the quality of the human environment.
The environmental analysis of alternatives and the proposed plan shall be ac-
complished as part of the resource management planning process and, wher-
ever possible, the proposed plan and related environmental impact statement
shall be published in a single document.” 37 This explicit policy attempts to
integrate resource management planning and NEPA requirements to the
greatest extent possible.

In addition to these planning regulations the BLM provides a handbook to
guide its staff in preparing NEPA documents. The handbook is intended for
use by BLM officials responsible for oversight of and compliance with the
National Environmental Policy Act (NEPA) within their program area and the
BLM personnel responsible for preparing NEPA documents. 38 The guidance
provided in this handbook is intended to address both CEQ’s Regulations for
Implementing NEPA and the Department of the Interior’s manual guidance
on the National Environmental Policy Act of 1969 (516 DM 1-7). 39

384

APPENDIX B

As one reviews conflict resolution efforts that have included issues under
the BLM’s jurisdiction, these laws and regulations may provide some insights
into the types of documents that already exist, as well as chronicle the scope
of public involvement and the resources considered within this planning
framework.

National Park Service & Organic Act of 1916

The National Park Service Organic Act of 1916 created the National Park
Service and the national park system. 40 The Park Service prepares general
management plans intended to preserve natural and cultural resources and
guide recreational uses in units within the park system. Management plans
should: include measures to preserve resources, and assess the needs and im-
pacts of development associated with public visitation, visitor carrying ca-
pacities and potential modifications to boundaries of the park service unit. 41
The Park Service maintains websites that provide helpful and up-to-date
background on their planning process, current and completed planning efforts,
planning policy, a sourcebook, and its NEPA implementing procedures. 42
Through these documents, one can access information about the planning
framework, and identify any general management plans that may be relevant
to a conflict resolution analysis.

NOTES

1 Defenders of Wildlife, “Weakening the National Environmental Policy Act: How the Bush
Administration Uses the Judicial System to Weaken Environmental Protection,” (Washing-
ton,DC: Defenders of Wildlife, 2003), http://www.defenders.org/publications/nepareport.pdf;
Zachary Coile, “House OKs Bush Plan for ‘Healthy Forests,’” San Francisco Chronicle,
May 21, 2003; Matthew Daly, “Bush and Environment: Getting His Way By Settling Law-
suits,” AP Wire, April 18, 2003; John Heilprin, “Interior Department Tries to Accelerate
Research into Oil and Gas Drilling in Rockies,” AP Wire, April 18, 2002; Charles Leven-
dosky, “Bush Turns BLM Into Energy Machine,” High Country News, March 18, 2002.

2 42 U.S.C. § 4332 (2)(C)

3 42 U.S.C. § 4332 (2)(B)

4 42 U.S.C. § 7609

5 40 C.F.R. Parts 1500-1508; 46 Fed. Reg. 18026-18038 (3/23/81).

6 U.S. Environmental Protection Agency, National Environmental Policy Act

(http://www.epa.gov/Compliance/resources/policies/nepa/index.html). Last Updated April
8, 2003; CEQ NEPANet (http://ceq.eh.doe.gov/nepa/nepanet.htm).

Federal Policies Affecting Environmental Conflict Resolution

385

7 Defenders of Wildlife, Saving Biodiversity, (Albuquerque, NM: Defenders of Wildlife, 1996)

(also available online at http://www.defenders.org/pb-bstOO.html).

8 Ibid., pp. 36, 37.

9 State Environmental Resource Center, http://www.serconline.org/

10 16U.S.C. § 1531- § 1544, as amended.

11 16U.S.C. § 1533

12 16U.S.C. § 1536

13 U.S. Fish & Wildlife Service and National Marine Fisheries Service, “Procedures for Con-
ducting Consultation and Conference Activities under Section 7 Handbook of the Endan-
gered Species Act,” March 1998.

14 16U.S.C. § 1539

15 U.S. Fish &WildlifeService, “Endangered Species Homepage,” (http://endangered.fws.gov/).

16 U.S. Fish & Wildlife Service, “Endangered Species Habitat Conservation Planning,”
(http://endangered.fws.gov/hcp/index.html).

17 Defenders of Wildlife, Saving Biodiversity, 1996; Dale D. Goble, Susan M. George, Kathryn

Mazaika, J. Michael Scott, and Jason Karl, “Local and National Protection of Endangered
Species: An Assessment,” Environmental Science & Policy 2 (1999): 43-59.

18 33 U.S.C. § 1329

19 U.S. Environmental Protection Agency, Region 10, “A Glossary of Watershed Related
Terms,” September 1994.

20 U.S. Environmental Protection Agency, Office of Water, “Nonpoint Source Pollution,”
(http://www.epa.gov/owow/nps/), March 14, 2003.

21 U.S. Environmental Protection Agency, “Online Library System,” (http://www.epa.gov/
natlibra/ols.htm), updated April 15, 2002.

22 U.S. Environmental Protection Agency, Nonpoint Pointers Pointer No. 2 (EPA-841-F-96-
004B), March 1996 (http://www.epa.gov/owow/ nps/facts/point2.htm).

23 U.S. Environmental Protection Agency, Office of Water, “Total Maximum Daily Load Pro-

gram,” (http://www.epa.gov/OWOW/tmdl/docs.html), February 24, 1998.

24 33 U.S.C. §1344

25 U.S. Environmental Protection Agency, Office of Wetlands, Oceans, Watersheds, “Section
404 of the Clean Water Act: An Overview,” (http://www.epa.gov/owow/wetlands/facts
/factl0.html),last updated January 16, 2003.

26 U.S. Environmental Protection Agency, Office of Wetlands, Oceans, Watersheds, "Wetlands

- Monitoring & Assessment,” (http://www.epa.goV/owow/wetlands/monitor/#vol), last up-
dated March 31, 2003.

27 U.S. Environmental Protection Agency, Office of Water, “Monitoring and Assessing Water

Quality,” (http://www.epa.gov/owow/monitoring/index.html), last updated March 27, 2003.

28 http://www.epa.gov/owow/wetlands/wetwalk.pdf

" 9 National Forest Management Act, 16 U.S.C. § 1600-14; National Forest System Land and
Resource Management Planning, 36 C.F.R. Part 219; Forest Service Manual, Chapter 1950,
Environmental Policies and Procedures; Forest Service Handbook, Chapter 1909.15, Envi-
ronmental Policies and Procedures Handbook.

30 65 Fed. Reg. 67514

31 67 Fed. Reg. 72770

32 “The 2002 Proposed NFMA Rule,” (http://www.fs.fed.us/emc/nfma/index3.html), last Modi-

fied July 2003.

33 43 U.S.C. §1701 (a)(1)

34 43 U.S.C. § 1711 (a)

35 43 U.S.C. § 1701 (a)(7)

36 43 C.F.R. Parts 1610.4-1 to 1610.4-9

386

APPENDIX B

37 43 C.F.R Part 1601.0-6

38 H- 1790-1 - National Environmental Policy Act Handbook (http://www.blm.gov/nhp
/efoia/wo/handbook/hl790-l.html).

39 Id. At 4

40 National Park Service Organic Act of 1916, 16 U.S.C. § l-18f

41 16 U.S.C. § la-7

4 “ National Park Service - Park Planning (http://planning.den.nps.gov/default.cfm) Last Modi-
fied May 5, 2003

APPENDIX C

APPLYING THE ECONOMIC AND FINANCIAL
CRITERIA

This appendix provides some concrete guidance on applying the economic
and financial criteria to the case studies. These criteria are 11. C, Process Costs;
111. A, Cost-Effective Implementation; III.B, Perceived Economic Efficiency;
III.C, Financial Feasibility/Sustainability; II1.D, Cultural and Community
Sustainability; and 1II.E, Environmental Sustainability.

Why Consider Economic and Financial Aspects?

Policymakers and the public require accountability for the manner in
which environmental conflicts are resolved. Public agencies often are
stakeholders in conflicts, public resources are expended in grappling with
conflicts and issues of public interest - such as air and water quality,
endangered species, and management of public lands - frequently are the
subject of the disputes. Public officials want to know how much money, time,
and other resources were expended, whether the costs incurred were justified
by the positive outcomes of the dispute resolution process and whether the
best possible process was used.

In order to fully address these questions, it would be necessary to
document the costs incurred by all parties to the conflict, the costs imposed on
taxpayers and other indirect parties, and the costs yet to be borne in the
implementation of the outcome. Moreover, in order to determine whether the
process and the outcome were worthwhile, it would be necessary to identify

388

APPENDIX C

all the current and future benefits, express them in dollars, and then weigh the
benefits against the costs. If the benefits were found to outweigh the costs,
then the process and outcome could be characterized as worthwhile in the
sense that they returned more in benefits than was expended in costs. If one
wishes to rigorously document that the best possible process was used for the
case, it is necessary to estimate the costs and benefits of an alternative process
and the likely outcome (i.e., litigation compared to a negotiated agreement).
This sort of hypothetical comparison may be possible in some cases, but is
fraught with difficulties. Another approach is to examine actual costs and
benefits in parallel sets of similar cases that were resolved through different
processes.

Such rigorous inquiry is not possible with limited data, the absence of
comparable data across similar cases resolved by different mechanisms, and
the limited resources to study the matter. Consequently, this Guidebook takes
the strategy of collecting available data on costs and characterizing benefits
largely in descriptive terms, except where monetary measures of benefits can
be obtained from other studies. Over time, with a sufficiently large number of
carefully documented cases, it will be possible to say more about the costs
and benefits of litigation, mediation, administrative actions, legislative
remedies, and other resolution methods.

Suggestions for Collecting and Recording Information

Record anecdotal evidence on costs and benefits (including quotes by
affected parties or observers on their perceptions) with careful notes on the
source, the individual being quoted, and their title and institutional affiliation.
Perceptions may not be consistent with factual evidence, but it is still
interesting for our purposes to learn how parties perceive the economic and
financial aspects of resolving disputes and implementing outcomes.

There are numerous mechanisms through which parties incur costs and
raise funds to financially support a process or to implement an outcome.

These include, but are not limited to:

- legislative appropriations

- changes in tax, water and electricity rates

- direct grants and donations

- contributions of land, water, equipment

- contributions of staff time and expertise directed to specific puipose

- bonds issued by public entities, such as cities, counties, irrigation
districts

- loans provided at favorable interest rates or with favorable repayment
provisions

- forgiveness of existing debts or restructuring of loan repayment:

Applying the Economic and Financial Criteria

389

If you are planning to contact parties to obtain economic and financial
information, be aware that much of this may be confidential data and not
readily shared. Moreover, many organizations do not compile data on how
much staff time and money has gone into a specific case. More likely, a
manager may simply be able to comment that “three of my staff have each
devoted 50 percent of their time to this case for the past two years; a
hydrologist, a biologist, and an attorney.” This is useful information. Try to
get estimates of the percentage of staff members’ workload devoted to the
case, over how many months/years, and the profession and title of the staff
members involved. Salary levels are useful in converting time into monetary
figures. Salary data may be obtainable from public records for public agency
staff but may be confidential information for businesses and non-
governmental organizations.

Refrain from asking organizations to compile detailed cost and financial
information that have not already been collected for other puiposes prior to
your inquiry. This task can be very time consuming and such requests should
only be made under special circumstances or when the organization indicates
a willingness to compile the information.

The costs of a dispute continuing unresolved become the benefits of
achieving resolution IF they are costs that the parties no longer have to incur
once an outcome has been achieved. Costs of the dispute continuing are also
important because they affect the stakeholders’ incentives to resolve the
dispute. In particular, the distribution of the costs affects incentives to settle.
If the costs of the dispute are high and affect all parties, then they all have
incentive to settle. However, costs are usually unevenly distributed. Some
parties benefit from the status quo and face relatively low costs. They prefer
to delay reaching a settlement and to wear other parties down by imposing
high costs on them. Examples of this include irrigation districts that benefit
from current water allocations which can impose high costs on environmental
interests by impeding settlement while a species declines. Likewise, non-
Indian water users may delay settlement to put off the day when water they
have been using is allocated to a tribe.

Examples of the types of benefits that may be generated by resolving a
dispute include:

improved economic output, productivity

- additional crops planted

- increased fish harvests

- new subdivisions built

enhanced certainty and ability to plan
- planning for urban growth

390

APPENDIX C

- endangered species recovery planning

environmental improvements

- habitat restoration

- better recreation quality

- increased population of endangered species

political/organizational benefits

- better cooperation between states, tribes, cities, irrigation districts

- good press for stakeholders and the process/outcome
improved organizational morale and credibility

- increased confidence in the system to solve problems
enhanced quality of community life

- decreased anxiety and tension.

Operationalizing the Economic Criteria □ Economic Terminology

Below are economic terms, that will be useful as you work through the
economic and financial criteria. Using this terminology in case analysis will
help create some consistency across case studies.

Baseline

The baseline is a crucial concept in examining the costs and benefits of a
process or an outcome. We seek to identify effects specifically caused by the
process and outcome being analyzed. However, there are likely to be other
changes that can not be attributed to the specific process and outcome we are
studying, but which affect the same region and resources. For instance, a
water district may vote to increase water rates in the communities we are
studying for reasons unrelated to the outcome we are examining. The
increased water rate should not be described as an effect of the outcome, even
though it is occurring during the time frame of the process/outcome we
analyze. As another example, a specific case may examine a cutback in
logging, which is causingjob losses and is associated with the outcome being
analyzed. At the same time and in the same area, a military base may be
closed (for reasons unrelated to the process/outcome), also causing loss of
jobs. We need to separate the economic effects of the base closure from those
impacts which are properly attributable to the process and outcome we are
analyzing.

In order to be clear about the effects of the cases we analyze vis a vis
changes occurring due to other factors, we need to define a “baseline” for our
cases. The baseline is the conditions that would exist without the process and
outcome we analyze. Effects due to the process/outcome are those that would

Applying the Economic and Financial Criteria

391

not have occurred without that process and outcome. This is called the “with
and without” principle. It attributes to the case only those effects that would
not have occurred anyway. For instance, if a fish species is declining and the
outcome we are analyzing provides 100,000 acre feet per year of additional
water for fish recovery (water that would not otherwise have been available
for this purpose), then improvements in fishery conditions linked to the new
100,000 acre feet can properly be described as benefits of the outcome. But
suppose that unusually favorable rainfall in one year brings another 200,000
acre feet for the fish. The outcome we are studying can't take credit for that.

It is not easy to isolate the impacts of a specific process and outcome from
all of the other events that are affecting the resources and the region involved
in a case study. In reporting the cases, be careful to note where multiple
factors contributed to changes in environmental, economic, and social
conditions. Search for studies that attempt to carefully trace the effects of the
process and outcome being analyzed and distinguish them from other forces at
work in the area. If your sources of information are not clear in this regard,
please note this in your case write up.

Accounting Stance

The choice of accounting stance is a decision made by the research team
regarding how widely (across time, layers of parties, and geographically) to
count cost, benefits, and other impacts in writing up cases. These choices may
differ for each case, but they should always be explicitly stated.

Here is an example of an explicit statement regarding accounting stance:
“The conflict over the Middle River has been ongoing since the early 1900s,
but in this analysis we examine the period 1960 to the present. The primary
parties are farmers, cities, and anglers. Boaters also are affected by the
conflict, but were not key players in the process. Consequently, there is little
information on impacts on boating, and we do not include boater impacts in
our detailed analysis. While the conflict does affect river management in
several downstream states, the primary impacts are in Nebraska. We do not
assess effects in downstream states because there is little information and
these effects are peripheral to the process and outcome we are analyzing,
which occurred within Nebraska. We count costs and benefits to federal
taxpayers, but examination of all other economic impacts is limited to
Nebraska.”

As the example illustrates, each case must clearly state the time period,
geographical area, and the range of parties considered in the analysis. Provide
a brief explanation of the reasons for excluding some time periods, regions,
and parties; e.g., not central to the case, limited information.

392

APPENDIX C

Opportunity Costs

An opportunity cost is not a direct expense paid out of some party’s
pocket. Rather, it is an opportunity (flow of expected benefits) that is given up
in order to obtain something else. While subtle as a cost concept (compared,
for instance, to the cost of constructing a dam), perceptions about opportunity
costs are powerful influences on parties. For instance, an irrigation district
that gives up some of the water it has been using in order to achieve a
negotiated settlement (with a tribe that claims the water for their own
puiposes) will view the future stream of farm profits that were foregone as a
genuine cost, even though it is not money spent out of pocket, but rather
disappointed expectations about the future. Every decision has opportunity
costs such as what a party could have done with the land, water, money, etc. if
they were not committed as specified in the outcome.

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References

399

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Index

(topics within case studies not indexed)
Ability to Resolve Subsequent Disputes
30; 42; 232-233; 268-269; 295; 363-
364

accessibility of criteria, 239-276;

defined, 239-240
accounting stance 390
agriculture, see irrigators
Alternative Dispute Resolution (ADR)

6; 285

ambiguity 256-258; 263; 285; 296; 344
American West 3
analysis 10; 208
appropriations 210

assessment 55-58, stages for 240; 274-
275

baselines 221-222; 240; 252; 257-258;
265; 269-271; 281-282; 285; 294;
389-390
Bay-Delta 286
Big Horn 59; 207-238; 294
Bureau of Land Management (BLM)
381-382

case study 56; 58-60; 62-64; 315
Central Arizona Project 278; 281
cities 245

clarity 37; 227; 285; 288
Clarity ofOutcome 30; 37; 221-222;

256-258; 282-282; 293-294; 343-345
Clean Air Act 376-377
Clean Water Act 291; 293; 375; 378-
380

coercion 227; 229-230; 263
Cognitive and Affective Shift 30; 43-45;
231-232; 267-268; 295; 361-362

collaborative processes, see consensus-
building

communication 263-265; 269; 285
communities 10

Community Self-Determination, see
Cultural Sustainability
comparative analysis 4; 6; 56-57; 62;

66; 207-237; 277; 297; 387-388
complementarity 8
complexity?

compliance 40; 253; 270; 288
Compliance with Outcome Over Time
30; 40; 224-226; 260-261; 283; 294;
351-353

conciliation 229-230
conflict 229-230; productive role 296
conflict, stages of 229
consensus-building 55; 209; 286-287;
290

cooperation 230-232
cost allocations 217; 252-253
cost-benefit 252; 292; 388-389
Cost Effective Implementation 30; 33-
34; 215-216; 250-252; 278-279;
292-293; 330-333
Costs, Reasonable Process see
Reasonable Process Costs
cost-sharing 289
creating value 38

criteria 5-6; 56-58; 61; 65; 234; 239-278

criteria accessibility 65

criteria categories 5-6

criteria reliability 65

criteria validity 65

cultural lifeways 218; 254-255; 293

402

Index

Cultural Sustainability/Community Self-
Determination 30; 35-36; 218-219;

254- 255; 280; 293; 336-340
deadlines 291

deescalation 229; 265; see also
escalation

distributive justice 38-39

drought 219-221; 255-256; 281; 293

Durability, see Stability

economic concepts 25 1 ; 387

Edwards Aquifer 59; 207-238; 279-281;

283-284; 289; 292-294
Efficient Problem-Solving 30; 38; 347-
348

elegant trades 38
empowerment 233

endangered species/Endangered Species
Act 8; 220-221; 281; 289; 291; 293;
375; 377-378

Enhanced Citizen Capacity to Draw on
Collective Potential Resources 30;
46; 368

“Enlibra” principles 285
environmental conflict resolution (ECR)
research 4-5

environmental impacts/Environmental
Impact Statement (EIS) 248; 25 1 ;

255- 256; 292-293; 375
environmental interests 255-256; 289
environmental protection/restoration

220; 225

Environmental Sustainability 30; 35;
219-221; 255-256; 281; 293; 340-
342

escalation 229; 264-265; 294
evaluation 4; 55;

evaluation framework 6-7; 28; 48; 56-
58; 61-62; 64-67; 207; 299-374
fairness 30; 38-40; 223-224; 289; 291;
349-350; see also
Satisfaction/Fairness
family systems theory 231; 267
Feasibility/Realism 30; 37; 222-223;

258-259; 345-346
Federal Advisory Committee Act
(FACA) 287

Federal Land Policy Management Act
(FLPMA)381-382

Financial Feasibility/Sustainability 30;
36-37; 2 16-2 18;' 252-254; 279-280;
283; 293; 334-336
financing mechanisms 253; 387
Flexibility 30; 40; 226-227; 261-263;
291; 353-354

forest service planning 380-381

forum for conflict management 264;
268; 292

framing 231-232; 267-268
Freedom of Information Act 248; 287
goals 5; 56
good faith 266-267
government sources 250
Guidebook 48; 57-58; 64; 67; 299-374
hostility 229-230; 264-265; 284; 294-
295

implementation 58; 209; 215; 223; 227-
228; 232; 242-276; 280; 294-295
Improved Relations 30; 42; 230-231;

265-267; 295; 358-361
incentives 227-228; 253; 264; 284-285;
287; 296; see also deadlines,
penalties

inclusiveness246-249; 291
Increased Community Capacity for
Environmental/Policy Decision-
making 30; 46; 369-370
interstate compacts 288
intersubjectivity 57
interviewing 64; 3 1 2
irrigators/agriculture 216:21 8-220; 224;

279- 280; 287; 289; 293
judicial approval 244-245:319
jurisdictions 2 18-220; 254;

coordination among 288
overlapping 8
justice 211; 233

legal feasibility 222-223; 245; 258
longevity 7

Lower Colorado River 59; 207-238;

278; 283; 288; 295
media 210; 213; 242-243
media sources 241-276
methodology 11; 55-67; 239
modification, ofOutcome 225-227; 261
monitoring 224-226; 228; 258; 260;

283-284; 288; 294; 296
Mono Lake 59; 71-106; 207-238; 279-

280- 284; 286; 289; 292-294
multiple CR processes 8; 10; 59; 61-62;

208

multiplesources223;31 1
multipliers 337
narrative analysis 231
narratives/stories 267
National Environmental Policy Act
(NEPA) 248; 291; 293; 375-377;

381

National Forest Management Act
(NFMA) 380-381
National Park Service 382

Index

403

National Park Service Organic Act 382
natural contingencies 255-256
Office of Management and Budget
(OMB) 292

operationalization 239-276; 389-390
opportunity costs 390-391
organic acts 380-382
Outcome 61-62; 241; 243
Outcome Quality 30; 33-38; 215-223;
234; 236; 250-259; 292-294; 330-
348

Outcome Reached 29-31; 208-211; 234;

236; 241-245; 290; 316-321
Pecos River 59; 157-176; 207-238; 279-
280; 288; 292; 294
penalties 284; 288

Perceived Economic Efficiency 30; 34-
35; 216; 333-334

perceptions 21 1-212; 222; 233; 291
performance standards 221-222; 257-
258; 281-282
polarization 229-230; 264
policy 7; 66; 285-297; 375-386
policymakers 6; 387
political feasibility 222-223; 258
power 229; 284-285; 289; 290; 296
prior appropriation 289
problem-solving 278-282; 290-291; 296
process design 6

Procedurally Accessible and Inclusive
213-214; 247-249; 283; 291-292;
323-326

procedural justice 31-32; 246-249; 282;
290

Procedurally Just 30-32; 211-212; 245-
247; 282; 290-291; 322-323
Process Quality 30-33; 211-215; 234;

236; 245-250; 290-292; 322-329
property values 292
Public Acceptability 37-38; 259; 269;
346-347

public access to information 248; 287
Public Acknowledgment of Outcome
209; 242-243; 318
public comment 282
public involvement/participation 212-
214; 247-249:283; 291
public notice 213-214; 283; 286
public records 245
public scrutiny 37

Pyramid Lake 59; 107-156; 207-238;

279-284; 288-289; 292; 294-295
Ratification 29-30; 210; 244-245; 290;
319-321

Realism, see Feasibility

Reasonable Process Costs 30; 32-33;

214-215; 249-250; 292; 326-329
Reduction in Conflict and Hostility 30;
43; 229-230; 264-265; 284; 294;
357-358

reflective practice 3; 6-7; 297
relations 42; 230-231; 233; 294-295; see
also Improved Relations
Relationship Between Parties 30; 42-45;
228-234; 237; 264-269; 294-295;
357-366

Relationship of Parties to Outcome 30;
38-41; 223-228; 234; 237; 259-264;
294; 349-356
relative merits 8

reliability of criteria, 239-276; defined,
240

researcher characteristics 63-64
Salt River 59; 207-238; 279-284; 289
Salt River Project 286
sanctions 227-230; 284
Satisfaction/Fairness 30; 38-40; 223-
224; 234; 259-260; 294; 349-351
scientific/technical feasibility 222-223;
258

self-realization 268

Snowmass Creek 60; 177-204; 207-238;

279-283; 292; 295
Social Capital 30; 45-47; 367-372
Social System Transformation 30; 46-
47; 371-372

socioeconomic indicators 254-255
sources, for data 63
sovereignty 218-219; 280
Stability/Durability 30; 41; 227-228;

263-264; 284; 354-356
subsidies 278

success 8; 15-56; 60; 62; 66; 252; 277;
290; 295

sustainability 30; 35-37; 2 1 6-22 1 ; 252-
256; defined 35; 219
third party 231; 295

time/timing 62; 65; 208; 216; 229; 239-
276

tradeoffs 219

Transformation 30; 45; 233-234; 284;
364-366

triangulation 239; 270
tribes 244; 280; 292-293
Truckee-Carson Basin Settlement 107+;
281

trust 230-231; 266; 295
Unanimity or Consensus 29-30; 209;

241-243; 290; 316-317
unequal weight/influence 212; 282

404

Index

unfunded mandates 217-218; 253; 280;
293

urban users 219

validity of criteria, 239-276; defined
240

values 66; 235

Verifiable Terms 209-210; 242-243;

290; 317-318
Waltonrights214
water banking 278
water conflict 7-8; 58-60; 214; 271
water conservation 252; 279; 281; 293
water districts 245
water exchanges 215; 278

water leases 279-280
water management 2 15; 225; 287; 289
water pricing 216-217; 253; 280; 293
water purchases 215
water quality 220; 228; 289; 291
water rights 224; 279; 288-290
watertransactions2 1 7
water transfers 252; 288; 292
ways of life, see cultural lifeways
“with and without principle" 252; 387

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